SUPREME COURT OF CANADA  
CITATION: Society of  
APPEAL HEARD: January 18,  
Composers, Authors and Music  
Publishers of Canada v.  
Entertainment Software  
Association, 2022 SCC 30  
2022  
JUDGMENT RENDERED: July  
15, 2022  
DOCKET: 39418  
BETWEEN:  
Society of Composers, Authors and Music Publishers of Canada  
Appellant  
and  
Entertainment Software Association, Entertainment Software Association of  
Canada, Apple Inc., Apple Canada Inc., Bell Canada, Quebecor Media Inc.,  
Rogers Communications Inc., Shaw Communications and Pandora Media Inc.  
Respondents  
AND BETWEEN:  
Music Canada  
Appellant  
and  
Entertainment Software Association, Entertainment Software Association of  
Canada, Apple Inc., Apple Canada Inc., Bell Canada, Quebecor Media Inc.,  
Rogers Communications Inc., Shaw Communications and Pandora Media Inc.  
Respondents  
- and -  
Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic,  
Canadian Music Publishers Association carrying on business as “Music  
Publishers Canada”, Professional Music Publishers Association, Canadian  
Association of Law Libraries, Library Futures Institute and Ariel Katz  
Interveners  
CORAM: Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin,  
Kasirer and Jamal JJ.  
Rowe J. (Wagner C.J. and Moldaver, Côté, Brown, Kasirer  
and Jamal JJ. concurring)  
REASONS FOR  
JUDGMENT:  
(paras. 1 to 114)  
Karakatsanis J. (Martin J. concurring)  
CONCURRING  
REASONS:  
(paras. 115 to 161)  
NOTE: This document is subject to editorial revision before its reproduction in final  
form in the Canada Supreme Court Reports.  
Society of Composers, Authors and Music Publishers of Canada  
Appellant  
v.  
Entertainment Software Association,  
Entertainment Software Association of Canada,  
Apple Inc.,  
Apple Canada Inc.,  
Bell Canada,  
Quebecor Media Inc.,  
Rogers Communications Inc.,  
Shaw Communications and  
Pandora Media Inc.  
Respondents  
Appellant  
- and -  
Music Canada  
v.  
Entertainment Software Association,  
Entertainment Software Association of Canada,  
Apple Inc.,  
Apple Canada Inc.,  
Bell Canada,  
Quebecor Media Inc.,  
Rogers Communications Inc.,  
Shaw Communications and  
Pandora Media Inc.  
Respondents  
and  
Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic,  
Canadian Music Publishers Association carrying on business as “Music  
Publishers Canada”,  
Professional Music Publishers Association,  
Canadian Association of Law Libraries,  
Library Futures Institute and  
Ariel Katz  
Interveners  
Indexed as: Society of Composers, Authors and Music Publishers of Canada v.  
Entertainment Software Association  
2022 SCC 30  
File No.: 39418.  
2022: January 18; 2022: July 15.  
Present: Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer  
and Jamal JJ.  
ON APPEAL FROM THE FEDERAL COURT OF APPEAL  
Intellectual property — Copyright — Communication to public by  
telecommunication — Making available online — On-demand transmissions —  
Amendment to Copyright Act clarifying that communication of work to public by  
telecommunication includes making it available to public in way that allows members  
of public to have access to it from place and at time they have individually chosen —  
Copyright Board concluding that amendment requires users to pay one royalty when  
work made available to public online and another royalty when work downloaded or  
streamed by member of public — Whether amendment creates new compensable  
making-available right — Copyright Act, R.S.C. 1985, c. C-42, ss. 2.4(1.1), 3(1)(f).  
Administrative law — Judicial review — Standard of review — Standard  
of review applicable where administrative body and courts share concurrent first  
instance jurisdiction over questions of law.  
In 1997, Canada signed the WIPO Copyright Treaty, one of two treaties  
negotiated for the purpose of adapting international copyright rules to new and  
emerging technologies. The Treaty sets out a number of protections that member  
countries are to provide to authors. Article 8 provides that authors of literary and artistic  
works shall enjoy the exclusive right to make their works available to the public in such  
a way that members of the public may access these works from a place and at a time  
individually chosen by them. In 2012, Parliament added s. 2.4(1.1) to the Copyright  
Act by way of the Copyright Modernization Act (“CMA”) to implement the rights and  
protections of the Treaty. Section 2.4(1.1) amends s. 3(1)(f) of the Copyright Act by  
clarifying that “communication of a work or other subject-matter to the public by  
telecommunication includes making it available to the public by telecommunication in  
a way that allows a member of the public to have access to it from a place and at a time  
individually chosen by that member of the public”.  
In the context of proceedings to set a tariff for online music services, the  
Copyright Board of Canada, which shares concurrent first instance jurisdiction over  
some aspects of the Copyright Act with the courts, concluded that s. 2.4(1.1) deems the  
act of making works available to be a separately protected and compensable activity.  
This meant that two royalties would be payable when a work is distributed online:  
(1) when it is made available online and (2) when the work is actually streamed or  
downloaded. The Federal Court of Appeal overturned the Board’s decision. It  
concluded that Parliament did not intend to create a new compensable making available  
right, and that, properly interpreted, s. 2.4(1.1) did not subject downloads and streams  
to two royalties.  
Held: The appeal should be dismissed.  
Per Wagner C.J. and Moldaver, Côté, Brown, Rowe, Kasirer and Jamal  
JJ.: The Copyright Act does not require that users pay two royalties to access works  
online. The reading of s. 2.4(1.1) of the Copyright Act that is most consistent with its  
text, structure, purpose, and context is that s. 2.4(1.1) clarifies that (1) s. 3(1)(f) applies  
to on-demand streams, and (2) a work is performed as soon as it is made available for  
on-demand streaming. This interpretation is technologically neutral and allows Canada  
to fulfill its obligations under art. 8 of the Treaty through a combination of the  
performance, reproduction, and authorization rights in s. 3(1). If a work is streamed or  
made available for on˗demand streaming, the author’s performance right is engaged. If  
a work is downloaded, the author’s reproduction right is engaged. If a work is made  
available for downloading, the author’s right to authorize reproductions is engaged.  
There are no gaps in protection. If a work is downloaded or made available for  
downloading, s. 3(1)(f) is not engaged. If a work is made available for streaming and  
later streamed, s. 3(1)(f) is only engaged once.  
The Board’s decision should be reviewed under the standard of  
correctness. In Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019  
SCC 65, [2019] 4 S.C.R. 653, the Court recognized five categories for correctness  
review. None of these categories justifies applying a correctness standard of review to  
situations of concurrent administrative and court first instance jurisdiction.  
Nevertheless, in rare and exceptional circumstances, new correctness categories can be  
recognized when applying reasonableness would undermine legislative intent or the  
rule of law in a manner analogous to the five correctness categories discussed in  
Vavilov. When courts and administrative bodies have concurrent first instance  
jurisdiction over a legal issue in a statute is one of those rare and exceptional  
circumstances where it is appropriate to recognize a new category of correctness  
review. Applying correctness accords with legislative intent — by conferring  
concurrent first instance jurisdiction to courts and administrative bodies, it should be  
inferred that the legislature wanted to subject those decisions to appellate standards of  
review. Applying correctness also promotes the rule of law. First, when there is  
concurrent first instance jurisdiction, the legislature has expressly involved the courts  
in the interpretation of a statute, which necessarily carries with it the implication that,  
absent legislative direction to the contrary, courts will operate by their settled standards.  
Second, it avoids conflicting statutory interpretations, and it provides a way to manage  
differing decisions between courts and tribunals. Third, this correctness category can  
be defined with precision, as it will apply only when courts and administrative bodies  
have concurrent first instance jurisdiction over a legal issue in a statute.  
A treaty should be considered when interpreting statutes that purport to  
implement the treaty. The treaty is relevant at the context stage of the statutory  
interpretation exercise. There is no need to find textual ambiguity in a statute before  
considering the treaty. Where the text permits, legislation should be interpreted so as  
to comply with Canada’s treaty obligations, in accordance with the presumption of  
conformity. However, a treaty cannot overwhelm clear legislative intent. The court’s  
task is to interpret what the legislature has enacted and not subordinate this to what the  
federal executive has agreed to internationally.  
Article 8 of the Treaty forms a relevant part of the context of s. 2.4(1.1)  
because Parliament intended to fulfill Canada’s obligations under art. 8 through  
s. 2.4(1.1): the CMA’s preamble states that it was enacted in part to implement the  
“norms” of the Treaty, and the wording of art. 8 and s. 2.4(1.1) is similar. The Treaty  
was also ratified shortly after the CMA was passed, and an explanatory memorandum  
placed before the House of Commons stated that the CMA was developed with a view  
to implementing the rights and protections of the Treaty.  
The Board’s interpretation of s. 2.4(1.1) is inconsistent with its text and  
structure, it undermines the purpose of the Copyright Act, and it is not required by art. 8.  
To understand the text of s. 2.4(1.1), one must understand the basic scheme of the  
Copyright Act. The opening paragraph of s. 3(1) exhaustively sets out three copyright  
interests that authors have in their works: the right to (1) produce or reproduce a work  
in any material form, (2) perform a work in public, or (3) publish an unpublished work.  
A single activity can only engage one of the three copyright interests. When a work is  
downloaded, giving a user a durable copy of a work, only the author’s reproduction  
right is engaged. When a work is streamed, allowing a user to experience a work for a  
limited period of time, only the author’s performance right is engaged. Authors are  
entitled to royalties for use of their works when an activity engages one of the copyright  
interests in s. 3(1). Nothing in the text of s. 2.4(1.1) indicates that Parliament intended  
to allow authors to charge two royalties for a single protected activity. The Board’s  
interpretation is also entirely inconsistent with the Court’s holdings in Entertainment  
Software Association v. Society of Composers, Authors and Music Publishers of  
Canada, 2012 SCC 34, [2012] 2 S.C.R. 231, and Rogers Communications Inc. v.  
Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 35, [2012]  
2 S.C.R. 283, which explained that downloads and streams are a single activity. Had  
Parliament intended to treat the act of making available as a new separately  
compensable activity, the way to do so would have been to add “making available” as  
a fourth copyright interest in the opening paragraph of s. 3(1), rather than as a  
modification to the scope of s. 3(1)(f).  
The Board’s interpretation also undermines the purpose of the Copyright  
Act because it violates the principle of technological neutrality by requiring that users  
pay additional royalties to access works online. Distributing functionally equivalent  
works through old or new technology should engage the same copyright interests. What  
matters is what the user receives, not how the user receives it. If that new technology  
gives users durable copies of a work, the author’s reproduction interest is engaged. If  
the new technology gives users impermanent access to the work, the author’s  
performance right is engaged. Clear legislative intent would be needed to derogate from  
the principle of technological neutrality given its central importance to the scheme of  
the Copyright Act. Since there is no persuasive basis for concluding that Parliament  
intended to derogate from the principle of technological neutrality, s. 2.4(1.1) should  
be interpreted in a way that is technologically neutral.  
Finally, while the Board correctly concluded that art. 8 of the Treaty  
requires that member countries give authors the right to control the act of making works  
available, in addition to any download or stream that might later occur, this obligation  
does not require the imposition of additional royalties on downloaded or streamed  
content. Each state can fulfill its art. 8 obligations through an explicit making available  
right or through a combination of pre-existing rights. Provided that the Copyright Act  
gives effect to art. 8’s goals through any combination of rights, Canada will be in  
compliance with its obligations under art. 8.  
Per Karakatsanis and Martin JJ.: The standard of review of the Board’s  
decision should be reasonableness. Creating a new correctness category only three  
years after a majority of the Court in Vavilov set out a comprehensive judicial review  
framework undermines Vavilov’s promise of certainty and predictability. Vavilov  
explicitly established a presumption of reasonableness that could only be displaced in  
five situations. Concurrent jurisdiction at first instance was not among them. The  
creation of a sixth category is simply contrary to the majority reasons in Vavilov.  
Although the Court did not definitively foreclose the possibility that  
another category could be recognized, the establishment of new categories was  
explicitly reserved for possible circumstances which could not be realistically foreseen.  
The reasons in Vavilov were based on a thorough review of the relevant jurisprudence,  
including correctness cases of recent vintage, such as Rogers. It is therefore unrealistic  
to suggest that the Court’s own precedent represents a possible set of circumstances  
that it could not have contemplated. And neither legislative intent nor the rule of law  
can make this case rare and exceptional — to conclude otherwise sweeps aside the  
Court’s recently established framework governing the standard of review.  
When applying the standard of reasonableness, context does not modify  
the standard or degree of scrutiny by the reviewing court, but it is obviously important  
in determining whether the decision itself is reasonable. And where the reasonableness  
standard applies to questions of statutory interpretation, the reviewing court must  
examine the administrative decision as a whole, including the reasons provided by the  
decision maker and the outcome that was reached. The court does so in reference to the  
modern principle of statutory interpretation, under which words, policy objectives and  
consequences all matter. It is not a purely textual exercise.  
Even on a reasonableness standard, the failure of the Board to consider the  
Court’s material and binding precedents or the animating themes of the Copyright Act  
was unreasonable. It was unreasonable for the Board to disregard the Court’s decision  
in Entertainment Software Association — the leading domestic authority on s. 3(1)(f).  
While the Board correctly pointed out that Entertainment Software Association was  
decided against a different legislative backdrop, three critical aspects remained the  
same: (i) the language of s. 3(1)(f); (ii) the Copyright Act’s fundamental distinction  
between performance and reproduction rights, and (iii) Parliament’s commitment to  
preserve technological neutrality. Had the Board meaningfully engaged with  
Entertainment Software Association, it would not have rendered a decision that  
captured downloads — a reproductive activity — within an act of communication, nor  
would it have effectively created two separate rights for a single activity.  
The Board’s decision was also unreasonable in the context of the broader  
statutory scheme. First, the Board’s reasons fail to meaningfully address the duplicate  
royalties that would arise when a work is subsequently downloaded or streamed. This  
was unreasonable in light of the Court’s caution against this precise kind of layering of  
rights. Second, the interpretation advanced by the Board is not technologically neutral  
because it opens the door to duplicate royalties simply because the transaction takes  
place online. Without displacing Parliament’s intent, the Board could not endorse an  
interpretation that applied differently to diverse forms of media.  
As this is not a case where the omission is a minor aspect of the interpretive  
context, the Board’s interpretation of s. 2.4(1.1) cannot be accepted. If correctness was  
the applicable standard, there would be agreement with the majority that s. 2.4(1.1)  
could not be read as creating a new independent right that is triggered when works are  
made available for downloading or on-demand streaming, nor as creating a separate  
tariff. Nothing in the text, context, or purpose of s. 2.4(1.1) suggests otherwise,  
particularly when viewed in light of the legal landscape in which it operates.  
Cases Cited  
By Rowe J.  
Applied: Entertainment Software Association v. Society of Composers,  
Authors and Music Publishers of Canada, 2012 SCC 34, [2012] 2 S.C.R. 231; Rogers  
Communications Inc. v. Society of Composers, Authors and Music Publishers of  
Canada, 2012 SCC 35, [2012] 2 S.C.R. 283; considered: Canada (Minister of  
Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653; Canadian  
Broadcasting Corp. v. SODRAC 2003 Inc., 2015 SCC 57, [2015] 3 S.C.R. 615;  
referred to: Re:Sound v. Canadian Association of Broadcasters, 2017 FCA 138, 20  
Admin. L.R. (6th) 179; Baker v. Canada (Minister of Citizenship and Immigration),  
[1999] 2 S.C.R. 817; B010 v. Canada (Citizenship and Immigration), 2015 SCC 58,  
[2015] 3 S.C.R. 704; National Corn Growers Assn. v. Canada (Import Tribunal),  
[1990] 2 S.C.R. 1324; Crown Forest Industries Ltd. v. Canada, [1995] 2 S.C.R. 802;  
Office of the Children’s Lawyer v. Balev, 2018 SCC 16, [2018] 1 S.C.R. 398; Rahaman  
v. Canada (Minister of Citizenship and Immigration), 2002 FCA 89, [2002] 3 F.C. 537;  
R. v. Hape, 2007 SCC 26, [2007] 2 S.C.R. 292; Németh v. Canada (Justice), 2010 SCC  
56, [2010] 3 S.C.R. 281; Kazemi Estate v. Islamic Republic of Iran, 2014 SCC 62,  
[2014] 3 S.C.R. 176; Bishop v. Stevens, [1990] 2 S.C.R. 467; Théberge v. Galerie d’Art  
du Petit Champlain inc., 2002 SCC 34, [2002] 2 S.C.R. 336; Society of Composers,  
Authors and Music Publishers of Canada v. Bell Canada, 2012 SCC 36, [2012] 2  
S.C.R. 326; York University v. Canadian Copyright Licensing Agency (Access  
Copyright), 2021 SCC 32; CCH Canadian Ltd. v. Law Society of Upper Canada, 2004  
SCC 13, [2004] 1 S.C.R. 339; Keatley Surveying Ltd. v. Teranet Inc., 2019 SCC 43,  
[2019] 3 S.C.R. 418; Muzak Corp. v. Composers, Authors and Publishers Association  
of Canada, Ltd., [1953] 2 S.C.R. 182; CCH Canadian Ltd. v. Law Society of Upper  
Canada, 2002 FCA 187, [2002] 4 F.C. 213; Society of Composers, Authors and Music  
Publishers of Canada v. Canadian Assn. of Internet Providers, 2004 SCC 45, [2004] 2  
S.C.R. 427; Apple Computer, Inc. v. Mackintosh Computers Ltd., [1988] 1 F.C. 673,  
aff’d [1990] 2 S.C.R. 209; SOCAN Statement of Royalties, Public Performance of  
Musical Works 1996, 1997, 1998 (Tariff 22, Internet) (Re) (1999), 1 C.P.R. (4th) 417;  
Warman v. Fournier, 2012 FC 803, 104 C.P.R. (4th) 21.  
By Karakatsanis J.  
Applied: Canada (Minister of Citizenship and Immigration) v. Vavilov,  
2019 SCC 65, [2019] 4 S.C.R. 653; considered: Rogers Communications Inc. v.  
Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 35, [2012]  
2 S.C.R. 283; Entertainment Software Association v. Society of Composers, Authors  
and Music Publishers of Canada, 2012 SCC 34, [2012] 2 S.C.R. 231; referred to:  
Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; Alberta (Information  
and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3  
S.C.R. 654; Society of Composers, Authors and Music Publishers of Canada v.  
Canadian Assn. of Internet Providers, 2004 SCC 45, [2004] 2 S.C.R. 427; Canadian  
Broadcasting Corp. v. SODRAC 2003 Inc., 2015 SCC 57, [2015] 3 S.C.R. 615; Domtar  
Inc. v. Quebec (Commission d’appel en matière de lésions professionnelles), [1993] 2  
S.C.R. 756; Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1  
S.C.R. 339; Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27; Bell ExpressVu Limited  
Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559; Uber Technologies Inc. v.  
Heller, 2020 SCC 16; TELUS Communications Inc. v. Wellman, 2019 SCC 19, [2019]  
2 S.C.R. 144; Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] 1 S.C.R.  
247; Construction Labour Relations v. Driver Iron Inc., 2012 SCC 65, [2012] 3 S.C.R.  
405; National Corn Growers Assn. v. Canada (Import Tribunal), [1990] 2 S.C.R. 1324;  
Théberge v. Galerie d’Art du Petit Champlain inc., 2002 SCC 34, [2002] 2 S.C.R. 336.  
Statutes and Regulations Cited  
Copyright Act, R.S.C. 1985, c. C-42, ss. 2.4(1.1), 3(1), 14.1, Part II, 15(1.1)(d),  
18(1.1)(a), 27(1), 28.1, Part VII.1.  
Copyright Act, 1921, S.C. 1921, c. 24.  
Copyright Modernization Act, S.C. 2012, c. 20, summary, preamble.  
Treaties and Other International Instruments  
Berne Convention for the Protection of Literary and Artistic Works, 828 U.N.T.S. 221.  
WIPO Copyright Treaty, Can. T.S. 2014 No. 20, art. 8.  
WIPO Performances and Phonograms Treaty, Can. T.S. 2014 No. 21.  
Authors Cited  
Bently, L., and B. Sherman. Intellectual Property Law, 4th ed. New York: Oxford  
University Press, 2014.  
Craig, Carys J. “Technological Neutrality: (Pre)Serving the Purposes of Copyright  
Law”, in Michael Geist, ed., The Copyright Pentalogy: How the Supreme Court  
of Canada Shook the Foundations of Canadian Copyright Law. Ottawa:  
University of Ottawa Press, 2013, 271.  
de Beer, Jeremy. “Copyright Royalty Stacking”, in Michael Geist, ed., The Copyright  
Pentalogy: How the Supreme Court of Canada Shook the Foundations of  
Canadian Copyright Law. Ottawa: University of Ottawa Press, 2013, 335.  
Drassinower, Abraham. “Copyright Is Not About Copying” (2012), 125 Harv. L. Rev.  
F. 108.  
Ficsor, Mihály. The Law of Copyright and the Internet: The 1996 WIPO Treaties, their  
Interpretation and Implementation. New York: Oxford University Press, 2002.  
Foong, Cheryl. The Making Available Right: Realizing the Potential of Copyright’s  
Dissemination Function in the Digital Age. Northampton, Mass.: Edward Elgar,  
2019.  
Ginsburg, Jane C. “The (New?) Right of Making Available to the Public”, in Columbia  
Law School Public Law & Legal Theory Working Paper Group, Working Paper  
No. 04-78, 2004.  
Harris, Lesley Ellen. Canadian Copyright Law, 4th ed. Hoboken, N.J.: Wiley, 2014.  
Keller, Ryan. “Moving Toward a Balanced ‘Making Available Right’ in Canada”  
(2014), 27 I.P.J. 213.  
Makeen, Makeen Fouad. “Video streaming and the communication to the public right  
in the United States and European Union”, in Tanya Aplin, ed., Research  
Handbook on Intellectual Property and Digital Technologies. Northampton,  
Mass.: Edward Elgar, 2020, 246.  
McKeown, John S. Fox on Canadian Law of Copyright and Industrial Designs, 4th ed.  
Toronto: Thomson Reuters, 2022 (loose-leaf updated June 2022, release 3).  
Reinbothe, Jörg, and Silke von Lewinski. The WIPO Treaties 1996: The WIPO  
Copyright Treaty and The WIPO Performances and Phonograms Treaty —  
Commentary and Legal Analysis. London: Butterworths LexisNexis, 2002.  
Ricketson, Sam, and Jane C. Ginsburg. International Copyright and Neighbouring  
Rights: The Berne Convention and Beyond, vol. I, 2nd ed. New York: Oxford  
University Press, 2005 (2010 reprint).  
Rowe, Malcolm, and Leanna Katz. “A Practical Guide to Stare Decisis” (2020), 41  
Windsor Rev. Legal Soc. Issues 1.  
Sookman, Barry B. Sookman: Computer, Internet and Electronic Commerce Law.  
Toronto: Thomson Reuters, 2022 (loose-leaf updated June 2022, release 2).  
Sookman, Barry, Steven Mason and Carys Craig. Copyright: Cases and Commentary  
on the Canadian and International Law, 2nd ed. Toronto: Carswell, 2013.  
Sullivan, Ruth. Sullivan on the Construction of Statutes, 6th ed. Markham, Ont.:  
LexisNexis, 2014.  
United States. United States Copyright Office. The Making Available Right in the  
United States: A Report of the Register of Copyrights. Washington, D.C.,  
February 2016.  
Vaver, David. Intellectual Property Law: Copyright, Patents, Trade-marks, 2nd ed.  
Toronto: Irwin Law, 2011.  
World Intellectual Property Organization. Diplomatic Conference on Certain  
Copyright and Neighboring Rights Questions. Basic Proposal for the Substantive  
Provisions of the Treaty on Certain Questions Concerning the Protection of  
Literary and Artistic Works to be Considered by the Diplomatic Conference, Doc.  
CRNR/DC/4, August 30, 1996.  
APPEAL from a judgment of the Federal Court of Appeal (Pelletier,  
Stratas and Near JJ.A.), 2020 FCA 100, [2021] 1 F.C.R. 374, [2020] F.C.J. No. 671  
(QL), 2020 CarswellNat 1745 (WL), setting aside a decision of the Copyright Board of  
Canada, No. CB-CDA 2017-085, [2017] C.B.D. No. 11 (QL), 2017 CarswellNat 4235  
(WL). Appeal dismissed.  
Casey M. Chisick, D. Lynne Watt, Matthew S. Estabrooks and Eric Mayzel,  
for the appellant the Society of Composers, Authors and Music Publishers of Canada.  
Barry B. Sookman, Daniel G. C. Glover and Connor Bildfell, for the  
appellant Music Canada.  
Gerald (Jay) Kerr-Wilson, Michael Shortt and Stacey Smydo, for the  
respondents the Entertainment Software Association, the Entertainment Software  
Association of Canada, Bell Canada, Quebecor Media Inc., Rogers Communications  
Inc. and Shaw Communications.  
Julie Rosenthal and Michael Koch, for the respondents Apple Inc. and  
Apple Canada Inc.  
David W. Kent and Jonathan O’Hara, for the respondent Pandora Media  
Inc.  
David Fewer, for the intervener the Samuelson-Glushko Canadian Internet  
Policy and Public Interest Clinic.  
Jessica Zagar, for the interveners the Canadian Music Publishers  
Association carrying on business as “Music Publishers Canada” and the Professional  
Music Publishers Association.  
Kim Paula Nayyer and Robert Janes, Q.C., for the interveners the  
Canadian Association of Law Libraries and the Library Futures Institute.  
Sana Halwani and Andrew Moeser, for the intervener Ariel Katz.  
The judgment of Wagner C.J. and Moldaver, Côté, Brown, Rowe, Kasirer  
and Jamal JJ. was delivered by  
ROWE J. —  
I.  
Overview  
[1]  
Does the Copyright Act, R.S.C. 1985, c. C-42, require that users pay two  
royalties to access works online, even though accessing the same work offline requires  
paying only one royalty?  
[2]  
The answer to this question depends on the correct interpretation of  
s. 2.4(1.1) of the Copyright Act. Section 2.4 (1.1) modifies the definition of s. 3(1)(f)  
by holding a work is communicated to the public as soon as it is made available in a  
way “that allows a member of the public to have access to it from a place and at a time  
individually chosen by that member of the public”. The Copyright Board of Canada  
concluded that s. 2.4(1.1) deems the act of making works available to be a separately  
protected and compensable activity. In practical terms, this meant that users needed to  
pay two royalties to access works online — a royalty for “making works available” and  
an additional royalty when the work was actually downloaded or streamed. The Board  
reasoned that this was the only interpretation that would fulfill Canada’s obligations  
under art. 8 of the 1996 WIPO Copyright Treaty, Can. T.S. 2014 No. 20, which requires  
that member countries give authors the exclusive right to control the act of making  
works available.  
[3]  
The Federal Court of Appeal overturned the Board’s decision. It concluded  
that the Board focused too much on art. 8’s meaning, rather than s. 2.4(1.1)’s meaning.  
Had it properly interpreted s. 2.4(1.1), the Board would have seen that Parliament did  
not intend to subject downloads and streams to two royalties.  
[4]  
The appellants, the Society of Composers, Authors and Music Publishers  
of Canada (“SOCAN”) and Music Canada, ask that this Court overturn the Court of  
Appeal’s decision and adopt the Board’s interpretation of s. 2.4(1.1).  
[5]  
I cannot agree with the Board’s interpretation of s. 2.4(1.1). The Copyright  
Act does not exist solely for the benefit of authors. Its overarching purpose is to balance  
authors’ and users’ rights by securing just rewards for authors while facilitating public  
access to works. When this balance is achieved, society is enriched. Authors are  
encouraged to produce more works, and users gain access to works which they can use  
to inspire their own original artistic and intellectual creations.  
[6]  
The principle of technological neutrality helps the Copyright Act balance  
the rights of authors and users. This principle holds that, absent parliamentary intent to  
the contrary, the Copyright Act should not be interpreted so as to favour or discriminate  
against any form of technology. It protects authors and users by ensuring that works  
attract the same rights and give rise to the same royalties regardless of the technological  
means used to distribute the works.  
[7]  
The Board’s interpretation departs from the principle of technological  
neutrality. It requires that users pay additional royalties to access works online.  
Requiring that users pay additional royalties based on the mode of the work’s  
distribution violates the principle of technological neutrality and shifts the balance  
between users’ and authors’ rights that has underpinned the Copyright Act for decades  
decisively in favour of authors.  
[8]  
The Board’s interpretation is not required by art. 8 of the WIPO Copyright  
Treaty. The Board’s interpretation of s. 2.4(1.1) would fulfill Canada’s obligations  
under art. 8. But other interpretations of s. 2.4(1.1) that are more consistent with its  
text, context, and purpose also conform to art. 8. In my view, s. 2.4(1.1) clarifies two  
things: (1) s. 3(1)(f) applies to on-demand technologies, and (2) a work is performed as  
soon as it is made available for online streaming. This interpretation of s. 2.4(1.1) is  
technologically neutral and allows Canada to fulfill its obligations under art. 8 through  
a combination of the performance, reproduction, and authorization rights in s. 3(1). If  
a work is streamed or made available for on-demand streaming, the author’s  
performance right is engaged. If a work is downloaded, the author’s reproduction right  
is engaged. If a work is made available for downloading, the author’s right to authorize  
reproductions is engaged. There are no gaps in protection.  
[9]  
As this interpretation of s. 2.4(1.1) is more consistent with its text, context,  
and purpose, I would adopt it over the Board’s. If a work is downloaded or made  
available for downloading, s. 3(1)(f) is not engaged. If a work is made available for  
streaming and later streamed, s. 3(1)(f) is only engaged once. It follows that I would  
dismiss the appeal.  
II. Facts  
[10]  
In 1997, Canada signed the WIPO Copyright Treaty. The WIPO Copyright  
Treaty is one of two treaties negotiated in 1996 for the purpose of adapting international  
copyright rules to new and emerging technologies.  
[11]  
The WIPO Copyright Treaty sets out a number of protections that member  
countries are to provide to authors. Of relevance to this appeal is art. 8, which provides  
that,  
[w]ithout prejudice to the provisions of Articles 11(1)(ii), 11bis(1)(i)  
and (ii), 11ter(1)(ii), 14(1)(ii) and 14bis(1) of the Berne Convention,  
authors of literary and artistic works shall enjoy the exclusive right of  
authorizing any communication to the public of their works, by wire or  
wireless means, including the making available to the public of their works  
in such a way that members of the public may access these works from a  
place and at a time individually chosen by them.  
[12]  
In 2012, the Copyright Modernization Act, S.C. 2012, c. 20 (“CMA”),  
amended the Copyright Act. Among other changes, the CMA introduced three “making  
available” provisions: ss. 2.4(1.1), 15(1.1)(d), and 18(1.1)(a). Sections 15(1.1)(d) and  
18(1.1)(a) apply to performances and sound recordings and are not at issue in this  
appeal.1 Section 2.4(1.1) applies to original works. It amends s. 3(1)(f) — which gives  
authors the right to “communicate the work to the public by telecommunication” — by  
clarifying that,  
[f]or the purposes of [the Copyright Act], communication of a work or  
other subject˗matter to the public by telecommunication includes making  
it available to the public by telecommunication in a way that allows a  
member of the public to have access to it from a place and at a time  
individually chosen by that member of the public.  
[13]  
Shortly after the CMA received royal assent, but before it came into force,  
this Court released two important decisions on the scope of s. 3(1)(f): Entertainment  
Software Association v. Society of Composers, Authors and Music Publishers of  
Canada, 2012 SCC 34, [2012] 2 S.C.R. 231 (“ESA”), and Rogers Communications Inc.  
v. Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 35,  
[2012] 2 S.C.R. 283. ESA held that the transmission of a musical work over the Internet  
that results in a download is not a communication by telecommunication under  
s. 3(1)(f). Rogers concluded that on-demand streams were captured by s. 3(1)(f).  
[14]  
After ESA and Rogers were released and after the CMA came into force,  
the Board received submissions on the meaning of s. 2.4(1.1). SOCAN, which  
1 Sound recorders and performers are not entitled to traditional copyright protection because they are not  
“authors”. They do not do anything “original” and they do not produce a “work”. Sound recorders  
record a work and performers interpret or execute works. Nevertheless, the Copyright Act protects  
these efforts in Part II: D. Vaver, Intellectual Property Law: Copyright, Patents, Trade-marks (2nd ed.  
2011), at pp. 63, 97-98 and 109-10. The rights provided to sound recorders and performers differ in  
justification and practice from the rights provided to authors in s. 3(1) of the Copyright Act.  
administers the s. 3(1)(f) right to “communicate” musical works on behalf of copyright  
owners, submitted that s. 2.4(1.1) requires that users pay tariffs2 (i.e., royalties) when  
they post works on the Internet in a way that allows the public to access the work. These  
royalties would be payable irrespective of whether the works are subsequently  
transmitted to a member of the public by way of download, stream, or not at all.  
III. Decisions Below  
A. Copyright Board of Canada, 2017 152886  
[15]  
The Board accepted SOCAN’s position. It reasoned that s. 2.4(1.1) deems  
making a work available to be a “communication” to the public regardless of whether  
any subsequent transmission occurs and regardless of whether a subsequent  
transmission is a download or a stream. This meant that two royalties would be payable  
when a work is distributed online: (1) when it is made available online and (2) when  
the work is actually streamed or downloaded. The Board’s reasoning relied heavily on  
art. 8 of the WIPO Copyright Treaty, which it read as requiring that member countries  
provide a separate and compensable protection for the act of “making a work  
available”.  
2 A tariff is a rate set by the Board which determines the licence fees payable to collective societies like  
SOCAN for the use of works. Collective societies like SOCAN collect the tariffs and give the resulting  
royalties to rights holders: see Part VII.1 of the Copyright Act; Re:Sound v. Canadian Association of  
Broadcasters, 2017 FCA 138, 20 Admin. L.R. (6th) 179, at paras. 9-16.  
B. Federal Court of Appeal, 2020 FCA 100, [2021] 1 F.C.R. 374 (Pelletier, Stratas  
and Near JJ.A.)  
[16]  
The Federal Court of Appeal held that the Board’s decision was  
unreasonable. Regarding the standard of review, the Court of Appeal noted that the  
jurisprudence prior to Canada (Minister of Citizenship and Immigration) v. Vavilov,  
2019 SCC 65, [2019] 4 S.C.R. 653, required reviewing the Board’s interpretation of  
s. 2.4(1.1) on a standard of correctness. However, after Vavilov, this jurisprudence was  
uncertain. While the Court of Appeal identified strong reasons for reviewing the  
Board’s decision on a standard of correctness, it applied the standard of reasonableness  
because it had not received submissions on the issue.  
[17]  
The Court of Appeal concluded that the Board placed too much weight on  
art. 8 when interpreting s. 2.4(1.1). Rather than focusing on what art. 8 means, the  
Board should have focused on what s. 2.4(1.1) means. Had it done so, the Board would  
have seen that Parliament did not intend to create a new compensable making available  
right.  
[18]  
While the Court of Appeal rejected the Board’s interpretation of s. 2.4(1.1),  
it did not explain what s. 2.4(1.1) means — it simply rejected the Board’s interpretation  
of s. 2.4(1.1) and quashed the Board’s decision.  
IV. Parties’ Positions  
A. Appellants  
[19]  
The appellants ask this Court to affirm the Board’s interpretation of  
s. 2.4(1.1). They argue that the Board correctly concluded that s. 2.4(1.1) deems the act  
of making works available to be a “communication” under s. 3(1)(f). A royalty is  
therefore payable whenever a work is made available for downloading or streaming. If  
the work is later downloaded, another reproduction royalty is payable. If the work is  
later streamed, another performance royalty is payable.  
B. Respondents  
[20]  
The respondents ask this Court to reject the Board’s interpretation of  
s. 2.4(1.1). They argue that s. 2.4(1.1) does not require that users pay two royalties to  
download or stream works. If a work is downloaded, only a single reproduction royalty  
is payable. If a work is streamed, only a single performance royalty is payable.  
Correctly interpreted, s. 2.4(1.1) simply clarifies that a work is “performed” as soon as  
it is “made available” for on-demand streaming. At that point, a royalty is payable. If  
the work is later streamed by a user, no additional royalty is payable because the stream  
is part of one continuous act of performance that began when the work was “made  
available” for streaming.  
V. Issues  
[21]  
This appeal raises three issues:  
(a) What is the appropriate standard of review?  
(b) What role does the WIPO Copyright Treaty play in interpreting  
s. 2.4(1.1)?  
(c) Does s. 2.4(1.1) entitle authors to an additional “making available”  
royalty?  
VI. Analysis  
A. Issue 1: What Is the Appropriate Standard of Review?  
(1) Prior Jurisprudence Needs to Be Reconsidered in Light of Vavilov  
[22]  
Prior to Vavilov, the Board’s decisions on the scope of rights in the  
Copyright Act were reviewed on the standard of correctness: see, for example, Rogers,  
at paras. 10-20; Canadian Broadcasting Corp. v. SODRAC 2003 Inc., 2015 SCC 57,  
[2015] 3 S.C.R. 615 (“CBC”), at para. 35.  
[23]  
These pre-Vavilov cases held that correctness was appropriate because the  
Board and courts have concurrent first instance jurisdiction over some aspects of the  
Copyright Act. In infringement actions, the scope of rights under the Act is routinely  
brought before courts for interpretation. Similarly, the Board may need to decide the  
scope of rights in the Act in order to set tariffs, as occurred in this case: Rogers, at  
paras. 12-13. Given this shared jurisdiction, the pre-Vavilov cases concluded that  
correctness was appropriate because it minimized the risk of conflicting statutory  
interpretations and gave effect to legislative intent: Rogers, at paras. 12-15; CBC, at  
para. 35.  
[24]  
In Vavilov, this Court reconsidered its standard of review jurisprudence. It  
simplified the law by holding that courts should review administrative decisions on a  
standard of reasonableness except when doing so would undermine legislative intent  
or the rule of law: paras. 17 and 69.  
[25]  
Vavilov overtook the prior jurisprudence: para. 143. Cases from this Court  
applying a correctness standard to the Board’s decisions therefore need to be  
reconsidered in light of Vavilov.  
(2) Concurrent First Instance Jurisdiction Should Be Recognized as a Sixth  
Category of Correctness  
[26]  
Vavilov recognized five categories for correctness review: legislated  
standards of review, statutory appeal mechanisms, constitutional questions, general  
questions of law of central importance to the legal system as a whole, and questions  
related to the jurisdictional boundaries between two or more administrative bodies  
(paras. 17 and 69). None of these categories justifies applying a correctness standard  
of review to situations of concurrent administrative and court first instance jurisdiction.  
[27]  
Nevertheless, I would apply a correctness standard of review to the Board’s  
decision. Vavilov did not “definitively foreclose the possibility that another category  
could be recognized as requiring a derogation from the presumption of reasonableness  
review”: Vavilov, at para. 70. In rare and exceptional circumstances, new correctness  
categories can be recognized when applying reasonableness would undermine  
legislative intent or the rule of law in a manner analogous to the five correctness  
categories discussed in Vavilov at paras. 23 and 70.  
[28]  
This is one of those rare and exceptional circumstances where it is  
appropriate to recognize a new category of correctness review: when courts and  
administrative bodies have concurrent first instance jurisdiction over a legal issue in a  
statute. Applying correctness to these issues accords with legislative intent and  
promotes the rule of law.  
(a) Legislative Intent  
[29]  
Reasonableness is the standard of review that, in most instances, gives best  
effect to legislative intent. When the legislature has granted exclusive jurisdiction to an  
administrative decision maker, courts presume that the legislature wanted that decision  
maker to operate without undue judicial interference: Vavilov, at para. 24.  
[30]  
When the legislature expressly involves the court in the administrative  
scheme, this presumption no longer applies. That is why legislated standards of review  
and statutory appeal mechanisms give rise to a correctness standard of review. Such  
statutory features indicate legislative intent for judicial involvement and a desire to  
subject those decisions to appellate standards of review: Vavilov, at para. 36.  
[31]  
When the legislature enacts a statute that gives concurrent first instance  
jurisdiction to courts and administrative bodies, the legislature expressly involves the  
courts. Like legislated standards of review and statutory appeal mechanisms,  
concurrent first instance jurisdiction signals a legislative intent for judicial  
involvement. By conferring such jurisdiction, it should be inferred that the legislature  
wanted to subject those decisions to appellate standards of review.  
[32]  
My colleague suggests that, because there is no statutory appeal  
mechanism or legislated standard of review, a sixth correctness category cannot be  
recognized on the basis of legislative intent. With respect, this argument misconceives  
the question at issue. If there were legislated standards of review or statutory appeal  
mechanisms, the Board’s decision would already be reviewed for correctness under  
those established correctness categories. There would be no reason to consider a sixth  
category of correctness. When there is no statutory appeal mechanism or legislated  
standard of review (or other established correctness category), the question is whether  
correctness is nevertheless appropriate because applying reasonableness would  
undermine legislative intent in a manner analogous to the established correctness  
categories. Since that is the case here, a sixth category of correctness is justified on the  
basis of legislative intent.  
(b) Rule of Law  
[33]  
The presumption of reasonableness must give way to considerations aimed  
at maintaining the rule of law, which requires that certain questions be answered  
consistently and definitively: Vavilov, at para. 53. Legal inconsistency “is antithetical  
to the rule of law”: Vavilov, at para. 72.  
[34]  
Applying reasonableness to the Board’s interpretation of the rights in the  
Copyright Act creates two legal inconsistencies. First, it subjects the same legal issue  
to different standards of review depending solely on whether the issue arises before the  
Board or the courts. As this Court explained in Rogers, at para. 14,  
[i]t would be inconsistent for the court to review a legal question on  
judicial review of a decision of the Board on a deferential standard and  
decide exactly the same legal question de novo if it arose in an infringement  
action in the court at first instance. It would be equally inconsistent if on  
appeal from a judicial review, the appeal court were to approach a legal  
question decided by the Board on a deferential standard, but adopt a  
correctness standard on an appeal from a decision of a court at first instance  
on the same legal question.  
[35]  
Second, differing standards of review could lead to conflicting statutory  
interpretations. For example, the Board could interpret s. 2.4(1.1) as requiring that users  
pay a performance royalty when works are downloaded, while a court could interpret  
the provision such that no such royalties are payable in those circumstances.  
[36]  
This raises different concerns than the potential for inconsistent decisions  
within an administrative body. In Vavilov, at para. 72, this Court declined to recognize  
a correctness category for legal questions on which there is persistent discord within an  
administrative body for three reasons: (1) ensuring that administrative bodies remain  
independent, as the legislature intended, requires tolerating some inconsistencies; (2) a  
robust reasonableness review can adequately manage the serious rule of law concerns  
that emerge when the law is indeterminate; and (3) the point at which internal discord  
becomes serious enough to warrant a correctness standard is impossible to define in the  
abstract. None of these rationales justifies maintaining a reasonableness standard of  
review when courts and administrative bodies have concurrent first instance  
jurisdiction.  
[37]  
First, when there is concurrent first instance jurisdiction, the legislature has  
expressly involved the courts in the interpretation of a statute. While one may  
contemplate a degree of inconsistency within an administrative body regarding the  
interpretation of a statute, no such inconsistency can be tolerated when a court  
interprets a statute. When the legislature confers first instance concurrent jurisdiction,  
that necessarily carries with it the implication that, absent legislative direction to the  
contrary, courts will operate by their settled standards, as explained in Vavilov, at  
para. 37.  
[38]  
Second, the more methodologically rigorous reasonableness review  
developed in Vavilov cannot adequately deal with an inconsistency in statutory  
interpretation between courts and administrative bodies. Vavilov offered guidance as to  
how to manage persistent discord within administrative bodies at paras. 129-32. But,  
other than telling administrative bodies to consider relevant judicial decisions, at  
para. 112, it offers little guidance on managing differing decisions between courts and  
tribunals. In those circumstances, unless the statute allows for only one reasonable  
interpretation, discord could persist indefinitely: see para. 124.  
[39]  
Third, this correctness category can be defined with precision. It will apply  
when courts and administrative bodies have concurrent first instance jurisdiction over  
a legal issue in a statute. Such situations are rare. “Concurrent jurisdiction at first  
instance seems to appear only under intellectual property statutes where Parliament has  
preserved dual jurisdiction between the tribunals and the courts”: Rogers, at para. 19.  
Administrative bodies will also continue to benefit from the presumption of  
reasonableness in other circumstances. The Board’s decision on tariff rates, for  
example, will continue to be reviewed on a standard of reasonableness as that is a matter  
that comes within the Board’s exclusive jurisdiction.  
(3) Conclusion: Standard of Review  
[40]  
Recognizing concurrent first instance jurisdiction between courts and  
administrative bodies as a sixth category of correctness review gives effect to  
legislative intent and promotes the rule of law. I will therefore review the Board’s  
decision under the standard of correctness.  
[41]  
I wish to emphasize that these reasons do not purport to change when it is  
appropriate to recognize a new correctness category. Vavilov contemplated that new  
correctness categories could be recognized only in rare and exceptional circumstances.  
Courts should only recognize new correctness categories when doing so is “consistent  
with the framework and the overarching principles set out in [Vavilov]”: para. 70. This  
is one of those circumstances.  
[42]  
Nor do these reasons depart from Vavilov. Contrary to my colleague’s  
assertion, this Court never “chose not to make first instance concurrent jurisdiction an  
exception”: para. 125 (emphasis in original). When this Court wanted to reject the  
possibility of a certain correctness category, it did so expressly: see Vavilov, at  
paras. 71-72. Concurrent first instance jurisdiction was not discussed in Vavilov.  
Accordingly, I seek to give effect to Vavilov by considering whether treating concurrent  
first instance jurisdiction as a new correctness category furthers the framework and  
principles in Vavilov. With respect, I say that it is my colleague who departs from  
precedent by effectively reading the possibility of further correctness categories out of  
Vavilov.  
B. Issue 2: What Role Does the WIPO Copyright Treaty Play in the Interpretation  
of Section 2.4(1.1)?  
[43]  
The Court of Appeal criticized the Board for focusing on the meaning of  
art. 8 in the WIPO Copyright Treaty, rather than the meaning of s. 2.4(1.1) in the  
Copyright Act. The parties also disagree on how much focus should be placed on art. 8.  
This case therefore calls for a reiteration of the role international treaties play in  
statutory interpretation.  
(1) A Treaty Is Relevant at the “Context” Stage of Statutory Interpretation  
[44]  
A treaty should be considered when interpreting statutes that purport to  
implement the treaty, in whole or in part. The treaty is relevant at the context stage of  
the statutory interpretation exercise: Baker v. Canada (Minister of Citizenship and  
Immigration), [1999] 2 S.C.R. 817, at para. 70; B010 v. Canada (Citizenship and  
Immigration), 2015 SCC 58, [2015] 3 S.C.R. 704, at para. 49; R. Sullivan, Sullivan on  
the Construction of Statutes (6th ed. 2014), at §18.30.  
[45]  
There is no need to find textual ambiguity in a statute before considering  
the treaty. The modern approach to statutory interpretation requires interpreting the  
statute’s text in its “entire context”. The statute’s context includes any relevant  
international legal obligations: National Corn Growers Assn. v. Canada (Import  
Tribunal), [1990] 2 S.C.R. 1324, at pp. 1371-72; Crown Forest Industries Ltd. v.  
Canada, [1995] 2 S.C.R. 802, at para. 50; Sullivan, at §18.26.  
[46]  
If a statute implements a treaty without qualification, the interpretation of  
the statute needs to be wholly consistent with Canada’s obligations under the treaty:  
Office of the Children’s Lawyer v. Balev, 2018 SCC 16, [2018] 1 S.C.R. 398, at  
para. 31. If the statute is less explicit as to the extent to which it gives effect to a treaty,  
the weight given to obligations under the treaty will depend on the circumstances of  
the case, such as the treaty’s specificity and the statute’s text: Rahaman v. Canada  
(Minister of Citizenship and Immigration), 2002 FCA 89, [2002] 3 F.C. 537, at  
para. 36. Where the text permits, legislation should be interpreted so as to comply with  
Canada’s treaty obligations, in accordance with the presumption of conformity: R. v.  
Hape, 2007 SCC 26, [2007] 2 S.C.R. 292, at para. 53; Németh v. Canada (Justice),  
2010 SCC 56, [2010] 3 S.C.R. 281, at para. 34; B010, at para. 48.  
(2) Courts Must Always Give Effect to the Statute’s Meaning  
[47]  
The presumption of conformity is an aid to interpretation. The task remains  
to give effect to legislative intent. The separation of powers requires that courts give  
effect to a statute that demonstrates legislative intent not to comply with treaty  
obligations: Hape, at para. 53. Negotiation, signing, and ratification of treaties are acts  
of the executive. Once ratified, treaties do not automatically become part of domestic  
law; rather, they are given effect through domestic legislation: Sullivan, at §18.36.  
[48]  
Accordingly, while a treaty can be highly relevant to statutory  
interpretation, it cannot overwhelm clear legislative intent. The court’s task is to  
interpret what the legislature (federally and provincially) has enacted and not  
subordinate this to what the federal executive has agreed to internationally. It is always  
the domestic statute that governs because “[i]nternational law cannot be used to support  
an interpretation that is not permitted by the words of the statute”: Kazemi Estate v.  
Islamic Republic of Iran, 2014 SCC 62, [2014] 3 S.C.R. 176, at para. 60.  
(3) Application  
[49]  
Article 8 forms a relevant part of the context of s. 2.4(1.1). The CMA’s  
preamble states that it was enacted in part to implement the “norms” of the WIPO  
Copyright Treaty. The wording of art. 8 and s. 2.4(1.1) is similar. As well, shortly after  
Parliament passed the CMA, Canada ratified the WIPO Copyright Treaty. An  
explanatory memorandum placed before the House of Commons regarding the treaty  
states that “Canada’s recent [CMA] was developed with a view to implementing the  
rights and protections of the WIPO Copyright Treaty, thereby putting Canada in a  
position to ratify”: condensed book (Music Canada), at p. 15. I am satisfied that these  
facts indicate that Parliament intended to fulfill Canada’s obligations under art. 8  
through s. 2.4(1.1). That provision should therefore be interpreted so as to fulfill  
Canada’s obligations under art. 8, to the extent possible given the Copyright Act’s text.  
C. Issue 3: Does Section 2.4(1.1) Entitle Authors to an Additional “Making  
Available” Royalty?  
[50]  
The Board concluded that s. 2.4(1.1) deems making a work available to be  
a “communication” under s. 3(1)(f), regardless of whether any subsequent transmission  
occurs and regardless of whether a subsequent transmission is a download or a stream.  
Therefore, the Board reasoned, as soon as a work is made available online, s. 3(1)(f) is  
triggered and a royalty is payable. If the work is later downloaded or streamed, another  
royalty is payable. This interpretation means that distributing works online requires  
paying two royalties — one when the work is made available and another when the  
work is downloaded or streamed.  
[51]  
I am not persuaded that this is the proper reading of s. 2.4(1.1). While this  
interpretation is one means to fulfill Canada’s obligations under art. 8, it is inconsistent  
with the text, structure and purpose of the Copyright Act. Further, art. 8 does not require  
this interpretation. If s. 2.4(1.1) is read as clarifying two things — (1) that s. 3(1)(f)  
applies to on-demand streams and (2) a work is performed as soon as it is made  
available for streaming — then Canada would also fulfill its obligations under art. 8.  
Either interpretation would fulfill Canada’s obligations under art. 8, but the latter  
interpretation is more consistent with the text, structure and purpose of the Copyright  
Act. For that reason, it is the latter interpretation, not the one adopted by the Board, that  
should be given effect.  
[52]  
My analysis in this section will proceed in five parts. I will explain why the  
Board’s interpretation (1) is inconsistent with s. 2.4(1.1)’s text and structure;  
(2) undermines the purpose of the Copyright Act; and (3) is not required by art. 8. I will  
then (4) offer my own interpretation of s. 2.4(1.1) and (5) explain why this  
interpretation allows Canada to fulfill its obligations under art. 8 through a combination  
of the performance, reproduction, and authorization rights in s. 3(1).  
(1) Text and Structure  
[53]  
To understand the text of s. 2.4(1.1), one must understand the basic scheme  
of the Copyright Act.  
[54]  
The opening paragraph of s. 3(1) of the Copyright Act exhaustively sets out  
three copyright interests that authors have in their works: the right to (1) produce or  
reproduce a work in any material form; (2) perform a work in public; or (3) publish an  
unpublished work. Section 3(1)(a) to (j) is “illustrative” of these three broad copyrights:  
ESA, at para. 42. For example, s. 3(1)(f), which gives authors the right to “communicate  
the work to the public by telecommunication”, illustrates an activity that falls within  
the broader right to perform a work in public. It is not a standalone or sui generis  
copyright in addition to the general rights described in s. 3(1): ESA, at paras. 25-27 and  
42.  
[55]  
The rights enumerated in s. 3(1) are distinct. A single activity can only  
engage one of the three copyright interests. When a song is downloaded, for example,  
only the author’s reproduction right is engaged. Similarly, when a work is streamed,  
only the author’s performance right is engaged: ESA, at para. 41. Authors are entitled  
to royalties for use of their works when an activity engages one of the copyright  
interests in s. 3(1).  
[56]  
To determine which copyright interest is engaged by an activity, one must  
examine what that activity does to the copyrighted work. A performance is  
impermanent — “[w]hen it is over, only the memory remains”: Bishop v. Stevens,  
[1990] 2 S.C.R. 467, at p. 479. Performances also allow authors to retain more control  
over their works than reproductions, as performed works can be withdrawn from the  
user after the performance is over. Accordingly, when an activity allows a user to  
experience a work for a limited period of time, the author’s performance right is  
engaged. A reproduction, by contrast, gives a user a durable copy of a work: Théberge  
v. Galerie d’Art du Petit Champlain inc., 2002 SCC 34, [2002] 2 S.C.R. 336, at  
paras. 42 and 47; ESA, at para. 35. Authors lose significantly more control over their  
works when they are reproduced. Once reproduced, authors cannot limit when, how, or  
the number of times a user experiences the work. Accordingly, activities that give users  
a durable copy of a work engage the author’s reproduction right.  
[57]  
An activity that does not engage one of the three copyright interests in  
s. 3(1) or the author’s moral rights3 is not a protected or compensable activity under the  
Copyright Act. In Théberge, for example, this Court held that authors could not prevent  
users from re-fixing their works on other canvasses because that activity did not engage  
the author’s reproduction, performance, or first publication rights. Even though altering  
the work in this manner was undoubtedly an “activity” in a physical sense, it was not a  
protected or compensable activity because there is no right of “fixation” in s. 3(1) of  
the Act.  
[58]  
The Board’s interpretation of s. 2.4(1.1) is inconsistent with the text of  
s. 2.4(1.1) and the scheme of the Copyright Act. In ESA and Rogers, this Court  
explained that, since downloads and streams were single protected activities, authors  
could charge one royalty when users access works as downloads or streams — a  
reproduction royalty for downloads or a performance royalty for streams. The Board’s  
3 Moral rights are outlined in ss. 14.1 and 28.1 of the Copyright Act. They are not in issue here.  
interpretation is entirely inconsistent with the holdings in ESA and Rogers. It would  
allow authors to charge two royalties for a single protected activity. If a work is  
downloaded, a user would pay (1) a performance royalty for making the work available  
and (2) a reproduction royalty for the download. If a work is streamed, a user would  
pay two performance royalties: (1) a performance royalty for making the work  
available and (2) another performance royalty for the stream.  
[59]  
There is nothing in the text of s. 2.4(1.1) to indicate that this was  
Parliament’s intent. Section 2.4(1.1) is located in the “Interpretation” Division of the  
Act. It modifies the scope of an author’s performance right by modifying the definition  
of s. 3(1)(f). Since a download is a single protected activity that never engages  
s. 3(1)(f), I fail to see how modifying the definition of s. 3(1)(f) transforms downloads  
into two separately compensable activities. Similarly, I do not see how s. 2.4(1.1)  
transforms a single activity like streaming into two separately compensable  
performances. While I accept that the act of “making a work available” is a separate  
physical activity from the act of a user downloading or streaming a work, it does not  
follow that it is a separately compensable activity. Had Parliament intended to treat the  
act of making available as a new separately compensable activity, the way to do so  
would have been to add “making available” as a fourth copyright interest in the opening  
paragraph of s. 3(1), rather than as a modification to the scope of s. 3(1)(f).  
[60]  
I do not accept SOCAN’s argument that this case is similar to CBC. In  
CBC, this Court found that the CBC had to pay separate reproduction royalties each  
time it made synchronization and broadcast incidental copies of a work. Two  
reproduction royalties were appropriate in that case because there were two protected  
activities in issue: (1) synchronization copying and (2) broadcast incidental copying.  
Since each activity created a separate durable copy of the work, each activity was  
protected and engaged the author’s reproduction interest: Théberge. But in this case,  
like in ESA and Rogers, there is only one protected activity in issue: either a download  
or a stream.  
[61]  
For these reasons, I find no textual support for the Board’s interpretation  
of s. 2.4(1.1).  
(2) Purpose of the Copyright Act  
[62]  
The Board’s interpretation of s. 2.4(1.1) also undermines the purpose of the  
Copyright Act because it violates the principle of technological neutrality.  
[63]  
The principle of technological neutrality holds that, absent parliamentary  
intent to the contrary, the Copyright Act should not be interpreted in a way that either  
favours or discriminates against any form of technology: CBC, at para. 66. Distributing  
functionally equivalent works through old or new technology should engage the same  
copyright interests: Society of Composers, Authors and Music Publishers of Canada v.  
Bell Canada, 2012 SCC 36, [2012] 2 S.C.R. 326, at para. 43; CBC, at para. 72. For  
example, purchasing an album online should engage the same copyright interests, and  
attract the same quantum of royalties, as purchasing an album in a bricks-and-mortar  
store since these methods of purchasing the copyrighted works are functionally  
equivalent. What matters is what the user receives, not how the user receives: ESA, at  
paras. 5-6 and 9; Rogers, at para. 29. In its summary to the CMA, which precedes the  
preamble, Parliament signalled its support for technological neutrality, by stating that  
the amendments were intended to “ensure that [the Copyright Act] remains  
technologically neutral”.  
[64]  
The Board’s interpretation of s. 2.4(1.1) violates the principle of  
technological neutrality because it requires that users pay additional royalties to access  
works online. To illustrate, consider a retailer that allows customers to purchase a  
digital or physical copy of an album. Regardless of whether the work is sold digitally  
or physically, the author’s reproduction interest in s. 3(1) is engaged because the user  
receives a durable copy of the work: ESA, at para. 31. The author is therefore entitled  
to a reproduction royalty. But under the Board’s interpretation of s. 2.4(1.1), purchasing  
the album online would entitle the author to an additional royalty — a performance  
royalty for making the work available for online purchase. Similarly, streaming the  
album online would require paying a “making available performance” royalty and a  
“streaming performance” royalty. But playing that same album on the radio would only  
require paying one performance royalty. Requiring that users pay additional royalties  
based solely on the mode of the work’s distribution violates the principle of  
technological neutrality.  
[65]  
The appellants concede that the Board’s interpretation of s. 2.4(1.1) is not  
technologically neutral. They submit, however, that Parliament intended to derogate  
from the principle by passing s. 2.4(1.1). Because works can only be “made available”  
online — since there is no bricks-and-mortar way for the public to access a work at a  
time and place of their choosing — the appellants submit that Parliament must have  
intended to impose additional royalties on works distributed online.  
[66]  
This is entirely unpersuasive. Clear legislative intent would be needed to  
derogate from the principle of technological neutrality given its central importance to  
the scheme of the Copyright Act. To appreciate why, it is necessary to situate the  
principle within the Act.  
[67]  
Copyright law does not exist solely for the benefit of authors: York  
University v. Canadian Copyright Licensing Agency (Access Copyright), 2021 SCC 32,  
at paras. 90-91. Its overarching purpose is to balance users’ and authors’ rights. It does  
this by securing just rewards for authors while facilitating “public access to and  
dissemination of artistic and intellectual works, which enrich society and often provide  
users with the tools and inspiration to generate works of their own”: Access Copyright,  
at para. 92; see also Théberge, at paras. 30-31.  
[68]  
The Copyright Act uses various tools to achieve this balance. Fair dealing,  
for example, promotes this balance by allowing “users to engage in some activities that  
might otherwise amount to copyright infringement”: Bell, at para. 11; see also Access  
Copyright, at para. 90. Similarly, the idea/expression dichotomy protects this balance  
by extending copyright protection to only original artistic expressions, not original  
ideas. This ensures that the public can freely use new ideas to inspire their own original  
works: CCH Canadian Ltd. v. Law Society of Upper Canada, 2004 SCC 13, [2004] 1  
S.C.R. 339, at para. 8; A. Drassinower, “Copyright Is Not About Copying” (2012), 125  
Harv. L. Rev. F. 108, at p. 111.  
[69]  
Like fair dealing and the idea/expression dichotomy, the principle of  
technological neutrality is a tool for balancing users’ and authors’ rights. It ensures that  
authors retain the same rights over their works regardless of the technological means  
used to distribute those works. If the Copyright Act entitles authors to receive a certain  
royalty when their work is reproduced or performed offline, technological neutrality  
preserves an author’s right to receive that same royalty when their work is reproduced  
or performed online. As a corollary, it also protects users by preventing authors from  
extracting more royalties merely because their work is reproduced or performed online.  
As Professor Carys J. Craig explains in “Technological Neutrality: (Pre)Serving the  
Purposes of Copyright Law”, in M. Geist, ed., The Copyright Pentalogy: How the  
Supreme Court of Canada Shook the Foundations of Canadian Copyright Law (2013),  
271,  
[t]his principled recognition of copyright as requiring a sensitive public  
policy balance, rather than simply the protection of a private property right,  
has had a marked impact on the landscape of Canadian copyright law. If  
copyright in general requires this balance, then it must surely follow that  
copyright in the digital era requires the preservation of this balance, which  
must mean that the law should have the same effect (produce a similar  
balance of rights and interests) whether applied offline or online.  
[Emphasis in original; p. 292.]  
[70]  
With this context in mind, I am not persuaded that, in adopting s. 2.4(1.1),  
Parliament intended to derogate from the principle of technological neutrality. The  
principle of technological neutrality is designed to operate precisely in situations like  
the present case, where a novel technology emerges that has no clear traditional  
equivalent. In those circumstances, courts must look at what that new technology does  
to the substance of the work by examining which, if any, of the copyright interests in  
s. 3(1) are engaged by this new method of distributing a work. If that new technology  
gives users durable copies of a work, the author’s reproduction right is engaged. If the  
new technology gives users impermanent access to the work, the author’s performance  
right is engaged. What matters is what the user receives, not how the user receives it.  
[71]  
With that said, copyright is a creature of statute. Parliament can therefore  
always choose to derogate from the principle of technological neutrality: Keatley  
Surveying Ltd. v. Teranet Inc., 2019 SCC 43, [2019] 3 S.C.R. 418, at para. 40. But  
derogating from this principle means significantly altering the balance between users’  
and authors’ rights that has been foundational to the Copyright Act for decades:  
Keatley, at paras. 43-44. In this case, it would tilt the balance significantly in favour of  
authors. Users would face increased costs and be penalized for using certain new and  
improved technologies.  
[72]  
Thus, courts should not conclude that Parliament intended to derogate from  
the principle of technological neutrality unless there is strong evidence that this was  
Parliament’s intent: see, for example, CBC, at paras. 50-51. That is not the case here.  
As discussed, the text of s. 2.4(1.1) and its placement in the Copyright Act does not  
support the view that Parliament wanted to make downloads and streams subject to two  
royalties. Further, as I will discuss next, giving effect to the WIPO Copyright Treaty  
does not demand this interpretation.  
[73]  
Since there is no persuasive basis for concluding that Parliament intended  
to derogate from the principle of technological neutrality, s. 2.4(1.1) should be  
interpreted in a way that is technologically neutral: reproducing or performing a work  
online or offline should engage the same copyright interests and require the same  
royalties.  
(3) Section 2.4(1.1)’s Statutory Context: Article 8  
[74]  
The Board did not err when it concluded that art. 8 requires that member  
countries give authors the right to control the act of making works available, in addition  
to any download or stream that might later occur. Authors should have recourse against  
individuals who upload their works online in a way that makes them available for  
downloading or streaming, even if the work is never actually downloaded or streamed.  
[75]  
But I part company with the Board in its conclusion that this obligation  
requires imposing additional royalties on downloaded or streamed content. The WIPO  
Copyright Treaty does not demand that member countries create a new compensable  
“making available right” to satisfy art. 8. Member countries simply need to ensure that  
authors can control the physical act of making their works available. This control can  
be provided through any combination of rights. Accordingly, while I agree that the act  
of “making a work available” is a separate physical activity from a download or stream,  
I disagree with the view that the act of “making a work available” gives rise to distinct  
communications to the public (i.e., distinct performances). The making available of a  
stream and a stream are both protected as a single communication to the public, while  
the making available of a download is protected as an authorization to reproduce, and  
the download is protected as a reproduction.  
[76]  
I expand on these points below, beginning with an examination of the goals  
of art. 8.  
(a) Article 8’s Goals  
[77]  
Article 8 has two goals: (1) clarify that on-demand transmissions are  
captured by the right to communicate works to the public; and (2) ensure that authors  
can control the act of making their works available online. To understand these goals,  
it is necessary to understand the problem that art. 8 was designed to address.  
[78]  
There is no “international copyright” law. However, many states have  
signed international treaties that require that they provide authors with certain  
protections in domestic copyright legislation. The 1886 Berne Convention for the  
Protection of Literary and Artistic Works, 828 U.N.T.S. 221, for example, requires that  
member countries give authors an exclusive right to reproduce a work or perform a  
work in public. Canada’s Copyright Act, 1921, S.C. 1921, c. 24, was based on, and  
designed to implement, the Berne Convention: C. Foong, The Making Available Right:  
Realizing the Potential of Copyright’s Dissemination Function in the Digital Age  
(2019), at p. 54; L. Bently and B. Sherman, Intellectual Property Law (4th ed. 2014),  
at pp. 40-41; D. Vaver, Intellectual Property Law: Copyright, Patents, Trade-marks  
(2nd ed. 2011), at p. 55; ESA, at para. 13, citing Bishop, at pp. 473-74.  
[79]  
The Berne Convention has been updated from time-to-time to respond to  
new technologies: L. E. Harris, Canadian Copyright Law (4th ed. 2014), at p. 59. In  
1928, for example, the Berne Convention was updated to clarify that radio  
communications should be treated as an extension of the existing performance right:  
ESA, at para. 16.  
[80]  
The Berne Convention needed to be updated again in response to  
on˗demand technologies. By the 1990s, it was clear the Berne Convention protected  
authors when their works were distributed through traditional “push” technologies like  
radio and cable broadcasts. But it was not clear whether it also protected authors when  
their works were distributed through newer “pull” technologies like on-demand  
transmissions. While it was possible to read the Berne Convention as applying to on-  
demand technologies, uncertainty existed: S. Ricketson and J. C. Ginsburg,  
International Copyright and Neighbouring Rights: The Berne Convention and Beyond  
(2nd ed. 2005 (reprinted 2010)), vol. I, at p. 742; Foong, at pp. 56-57; M. F. Makeen,  
“Video streaming and the communication to the public right in the United States and  
European Union”, in T. Aplin, ed., Research Handbook on Intellectual Property and  
Digital Technologies (2020), 246, at p. 253; Rogers, at para. 43.  
[81]  
Article 8 resolved this ambiguity: Foong, at p. 60. It clarified that the right  
of “communication to the public” (an existing Berne Convention right) applied to  
on˗demand transmissions:  
The WCT’s principal innovation is its specification that the right of  
communication to the public includes a right of “making available. . .”.  
This right targets on-demand transmissions (whether by wire or wireless  
means), for it makes clear that the members of the public may be separated  
both in space and in time. . . . [I]t was possible to interpret the Berne  
Convention to cover at least wired on-demand transmissions of certain  
kinds of works, but it was not clear that the Berne Convention required  
member states to extend the communication to the public right to these  
transmissions. The WCT therefore supplies the missing mandate. . . .  
[Emphasis in original.]  
(Ricketson and Ginsburg, at p. 746; see also explanatory notes on art. 8  
(then art. 10) in Diplomatic Conference on Certain Copyright and  
Neighboring Rights Questions, Basic Proposal for the Substantive  
Provisions of the Treaty on Certain Questions Concerning the Protection  
of Literary and Artistic Works to be Considered by the Diplomatic  
Conference, Doc. CRNR/DC/4, August 30, 1996, at notes 10.11 and  
10.13.)  
[82]  
Article 8’s first goal was therefore to clarify that the right to communicate  
works to the public (a performative activity) applied to on-demand technology. This  
was “neither a reaffirmation nor a novelty, for it resolves an ambiguity as to whether  
the old communication to the public rights accommodated or excluded ‘pull  
technologies’”: J. C. Ginsburg, “The (New?) Right of Making Available to the Public”,  
in Columbia Law School Public Law & Legal Theory Working Paper Group, Working  
Paper No. 04-78 (2004), at p. 12; see also J. Reinbothe and S. von Lewinski, The WIPO  
Treaties 1996: The WIPO Copyright Treaty and The WIPO Performances and  
Phonograms Treaty — Commentary and Legal Analysis (2002), at pp. 102 and 109;  
Makeen, at pp. 253-54; J. S. McKeown, Fox on Canadian Law of Copyright and  
Industrial Designs (4th ed. (loose-leaf)), at § 21:59.  
[83]  
Article 8’s second goal was to ensure that authors could control when their  
works were made available online. The appellants, respondents, and their experts  
generally agree that art. 8 requires that member countries give authors the right to  
control the act of offering their works for downloading or streaming. The academic  
literature overwhelmingly supports this view: Reinbothe and von Lewinski, at p. 108;  
Bently and Sherman, at p. 45; United States Copyright Office, The Making Available  
Right in the United States: A Report of the Register of Copyrights (February 2016), at  
pp. 13-14; B. B. Sookman, Sookman: Computer, Internet and Electronic Commerce  
Law (loose-leaf), at § 3:90. As Cheryl Foong explains,  
[c]ertain characteristics of the making available right can be outlined.  
As the provision of mere accessibility is sufficient to infringe the right, it  
is not necessary to prove that an actual transmission has occurred. In this  
way, article 8 of the WCT lowered the communication right’s threshold of  
protection and enlarged its scope. [p. 79]  
[84]  
Similarly, as Ricketson and Ginsburg wrote, “[i]t is not necessary that the  
offer be accepted: ‘making available’ embraces incipient as well as effected  
communications” (p. 747).  
[85]  
This persuasively establishes that art. 8 requires that member countries  
give authors the right to control when and how their work is made available for  
downloading or streaming. This conclusion is in full accordance with the wording of  
art. 8, which entitles authors to control the act of making a work available in a way that  
the public “may access” it. Actual transmission is not required. It is also supported by  
the explanatory notes accompanying art. 8 (then art. 10), which explain that the  
relevant act protected by art. 8 is the “initial act” of providing “access” to the work:  
10.10 The second part of Article 10 explicitly states that communication to  
the public includes the making available to the public of works, by wire or  
wireless means, in such a way that members of the public may access these  
works from a place and at a time individually chosen by them. The relevant  
act is the making available of the work by providing access to it. What  
counts is the initial act of making the work available, not the mere  
provision of server space, communication connections, or facilities for the  
carriage and routing of signals. It is irrelevant whether copies are available  
for the user or whether the work is simply made perceptible to, and thus  
usable by, the user. [Emphasis added.]  
[86]  
This conclusion is also consistent with the WIPO Copyright Treaty’s  
purpose: to fill potential gaps in the Berne Convention created by the emergence of new  
Internet technologies. There would be significant gaps in protection if copyright owners  
had no recourse against individuals who illicitly make works available online for  
downloading or streaming.  
[87]  
But this conclusion does not require reading s. 2.4(1.1) as creating a new  
compensable “making available right”. Under the WIPO Copyright Treaty’s “umbrella  
solution”, member countries can protect the act of making a work available through  
various means. This is the issue to which I turn next.  
(b) The Umbrella Solution  
[88]  
To recap, art. 8 obliges member countries to do two things: (1) protect  
on˗demand transmissions and (2) give authors the right to control when and how their  
work is made available for downloading or streaming. It does not, however, tell  
member countries how to give effect to these obligations. To accommodate different  
legal traditions and different drafting techniques among member countries, the WIPO  
Copyright Treaty adopted an “umbrella solution”: each state could decide how to fulfill  
its art. 8 obligations. Member countries could provide for art. 8 protections through “an  
explicit making available right or provide effective coverage of the right through a  
combination of pre˗existing rights”: Foong, at pp. 62-63; see also Makeen, at p. 254;  
R. Keller, “Moving Toward a Balanced ‘Making Available Right’ in Canada” (2014),  
27 I.P.J. 213, at pp. 221-22. As the explanatory text accompanying art. 8 (then art. 10)  
emphasizes:  
10.21 It is strongly emphasized that Article 10 does not attempt to define  
the nature or extent of liability on a national level. This proposed  
international agreement determines only the scope of the exclusive rights  
that shall be granted to authors in respect of their works. Who is liable for  
the violation of these rights and what the extent of liability shall be for such  
violations is a matter for national legislation and case law according to the  
legal traditions of each Contracting Party.  
[89]  
In accordance with the umbrella solution, member countries have protected  
the act of making works available through a variety of means. Some have adopted  
wording similar to that in art. 8. Others have made no statutory changes, relying instead  
on existing rights to give effect to the obligations under art. 8. The United States, for  
example, has relied on its existing reproduction, performance, and distribution rights  
to give effect to its art. 8 obligations: United States Copyright Office, at pp. 74-77;  
Foong, at p. 84; Makeen, at pp. 256-57.  
[90]  
In sum, the umbrella solution gave “relative freedom [to] national  
legislators in choosing the right of distribution, the right of communication to the  
public, the combination of these rights, or a new right, to fulfil obligations under  
Article 8”: M. Ficsor, The Law of Copyright and the Internet: The 1996 WIPO Treaties,  
their Interpretation and Implementation (2002), at p. 501. Accordingly, provided that  
the Copyright Act gives effect to art. 8’s goals through any combination of rights,  
Canada will be in compliance with its obligations under art. 8.  
(4) What Is the Correct Interpretation of Section 2.4(1.1)?  
[91]  
With the art. 8 context in mind, the reading that is most consistent with the  
text, structure, purpose, and context of s. 2.4(1.1) is as follows: s. 2.4(1.1) clarifies that  
(1) s. 3(1)(f) applies to on-demand streams, and (2) a work is performed as soon as it  
is made available for on-demand streaming. This interpretation gives effect to Canada’s  
obligations under art. 8 through a combination of the performance, reproduction, and  
authorization rights in s. 3(1). In so doing, it also respects the principle of technological  
neutrality as it ensures that authors retain the same rights and royalties over their works  
regardless of whether the works are distributed online or offline.  
[92]  
First, s. 2.4(1.1) clarifies that the communication right in s. 3(1)(f) applies  
to on-demand streams. When the CMA received royal assent, it was not clear whether  
s. 3(1)(f) applied to “pull” technologies like on-demand streams. In Rogers, for  
example, a group of music service providers argued that s. 3(1)(f) did not apply to  
newer “pull” technologies like on-demand streams. Section 2.4(1.1) ends this debate  
by clarifying that s. 3(1)(f) applies to on-demand technology, since on-demand  
technology “allows a member of the public to have access to [a work] from a place and  
at a time individually chosen by that member of the public”.  
[93]  
The significance of s. 2.4(1.1) was blunted by Rogers, which interpreted  
s. 3(1)(f) as applying to on-demand streaming before s. 2.4(1.1) came into force.  
However, the CMA received royal assent before Rogers was released. Just as art. 8 did  
for the Berne Convention, s. 2.4(1.1) was intended to resolve an ambiguity and clarify  
that s. 3(1)(f) applies to on-demand streams. Had Rogers not been decided at the time  
or had it been decided differently, s. 2.4(1.1) would have significantly clarified the law:  
see J. de Beer, “Copyright Royalty Stacking”, in M. Geist, ed., The Copyright  
Pentalogy: How the Supreme Court of Canada Shook the Foundations of Canadian  
Copyright Law (2013), 335, at p. 363.  
[94]  
I also note that s. 2.4(1.1) provides slightly broader protection to authors  
than Rogers provides. Section 2.4(1.1)’s language makes clear that a single on-demand  
stream to a member of the public is a “communication to the public” under s. 3(1)(f).  
By contrast, the ratio in Rogers held that on-demand streams could be communications  
to the public if there was a “series of point-to-point communications of the same work  
to an aggregation of individuals”: para. 52 (emphasis added). Under s. 2.4(1.1) there is  
no need to prove a “series” of point-to-point communications. A single point-to-point  
on-demand communication to a member of the public will engage s. 3(1)(f).  
[95]  
Second, s. 2.4(1.1) clarifies that a work is performed as soon as it is made  
available for on-demand streaming. This interpretation is supported by the text of  
s. 2.4(1.1), its context, and the broader purpose of the Copyright Act.  
[96]  
Textually, s. 2.4(1.1) says that a work is communicated when the work is  
made available in a way that “allows” a member of the public to access a work from a  
place and time of their choosing. It does not say that the work needs to be accessed for  
it to be communicated.  
[97]  
Contextually, art. 8 supports this reading of s. 2.4(1.1). As discussed, art. 8  
requires that member countries give authors the right to control the act of making works  
available, in addition to any resulting download or stream. One way to do so is to clarify  
that a work is performed as soon as it is made available for on-demand streaming.  
[98]  
Finally, this interpretation is consistent with the purpose of the Copyright  
Act as it promotes technological neutrality. Historically, a work was performed as soon  
as the public was given the opportunity to experience the work for a limited period of  
time. For example, when a work is transmitted over cable television, the work is  
performed, regardless of how many customers tune in to the channel. “[T]here need not  
be an audience listening to the performance, as long as the performance is meant for an  
audience”: Harris, at p. 141. As Ricketson and Ginsburg explain,  
[i]f only one person initiates the on-demand transmission at a time (or  
ever) is there a “communication to the public” within the meaning of the  
Berne Convention? The number of recipients should not in fact matter;  
what should count is the availability of the communication to “the public”.  
For example, there is a “communication to the public by wire” of a  
cinematographic work (article 14bis(1)) if a film is transmitted on cable  
television, even if no viewer in fact selects that channel to watch. What  
makes the communication “to the public” is the invitation to any member  
of the public to turn on the television and view the programme. Even when  
the cable transmission is restricted, for example, to paying subscribers, it  
still is “to the public” because any member of the public is invited to pay  
the fee. [Emphasis added; pp. 742-43.]  
[99]  
Section 2.4(1.1) ensures that on-demand streams receive similar treatment.  
Section 2.4(1.1) makes it clear that a work is performed as soon as it is made available  
to the public for on-demand streaming because, at that point, users are given the  
opportunity to temporarily experience the work. Once a work is made available for on-  
demand streaming, all users have to do is tune in to the stream to experience the work.  
This is the digital equivalent of flipping to a 24/7 television channel that is continuously  
playing — that is performing — a particular work.  
[100]  
This interpretation does not require treating the act of making the work  
available as a separate performance from the work’s subsequent transmission as a  
stream. The work is performed as soon as it is made available for on-demand streaming.  
At this point, a royalty is payable. If a user later experiences this performance by  
streaming the work, they are experiencing an already ongoing performance, not starting  
a new one. No separate royalty is payable at that point. The “act of ‘communication to  
the public’ in the form of ‘making available’ is completed by merely making a work  
available for on˗demand transmission. If then the work is actually transmitted in that  
way, it does not mean that two acts are carried out: ‘making available’ and  
‘communication to the public’. The entire act thus carried out will be regarded as  
communication to the public”: Ficsor, at p. 508. In other words, the making available  
of a stream and a stream by a user are both protected as a single performance — a single  
communication to the public.  
(5) Does the Copyright Act Accord With Article 8?  
[101]  
With this interpretation in mind, I conclude that the Copyright Act gives  
effect to Canada’s obligations under art. 8 through a combination of the performance,  
reproduction, and authorization rights in s. 3(1).  
[102]  
If works are streamed or made available for streaming, the author’s  
performance right as illustrated by s. 3(1)(f) is engaged. A user cannot stream a work  
or make a work available for on-demand streaming without engaging the author’s  
performance right in s. 3(1).  
[103]  
However, since downloads do not engage s. 3(1)(f) or the author’s  
performance rights, the Copyright Act protects downloads through a different set of  
rights: the reproduction and authorization rights. If a work is downloaded, the author’s  
reproduction right is engaged; if the work is made available for downloading, the  
author’s right to authorize reproductions is engaged. To understand this point, it is  
necessary to understand the right to authorize reproductions or performances of a work  
in s. 3(1).  
[104]  
“It is an infringement of copyright for any person to do, without the consent  
of the copyright owner, anything that by this Act only the owner of the copyright has  
the right to do”: s. 27(1). This includes the right to “authorize” a reproduction or  
performance: s. 3(1). To “authorize” means to sanction, approve and countenance:  
CCH, at para. 38, citing Muzak Corp. v. Composers, Authors and Publishers  
Association of Canada, Ltd., [1953] 2 S.C.R. 182, at p.193. Whether a reproduction or  
performance has been authorized is a question of fact and can be “inferred from acts  
that are less than direct and positive, including a sufficient degree of indifference”:  
CCH, at para. 38.  
[105]  
Authorization is a distinct right granted to copyright owners. A user who  
unlawfully authorizes a reproduction or a performance of a work may be held liable for  
infringement of that right, regardless of whether the work is ultimately reproduced or  
performed: CCH Canadian Ltd. v. Law Society of Upper Canada, 2002 FCA 187,  
[2002] 4 F.C. 213, at paras. 112-13; Society of Composers, Authors and Music  
Publishers of Canada v. Canadian Assn. of Internet Providers, 2004 SCC 45, [2004] 2  
S.C.R. 427, at para. 120; B. Sookman, S. Mason and C. Craig, Copyright: Cases and  
Commentary on the Canadian and International Law (2nd ed. 2013), at p. 1001.  
[106]  
If an individual makes a work available for downloading, that person  
implicitly authorizes the work’s reproduction: Apple Computer, Inc. v. Mackintosh  
Computers Ltd., [1988] 1 F.C. 673 (C.A.), at p. 697, aff’d [1990] 2 S.C.R. 209. As the  
Copyright Board recognized in SOCAN Statement of Royalties, Public Performance of  
Musical Works 1996, 1997, 1998 (Tariff 22, Internet) (Re) (1999), 1 C.P.R. (4th) 417,  
“[a]uthorization” constitutes a separate protected use under the Act. To  
authorize is to sanction, approve and countenance. The person who makes  
a musical work available on an Internet-accessible site authorizes its  
communication. The work is posted for the sole purpose of being  
communicated and with full knowledge and intention that such a  
communication would occur. The person who makes the work available  
does more than merely provide the means to communicate the work; he/she  
either controls or purports to control the right to communicate it.  
. . .  
Moreover, it is the act of posting that constitutes authorization. By doing  
so, a person invites anyone with Internet access to have the work  
communicated to them. [Footnotes omitted; pp. 455-57.]  
See also Warman v. Fournier, 2012 FC 803, 104 C.P.R. (4th) 21, at  
para. 13.  
[107]  
While the above passage refers to communications, the Board’s comments  
are similarly applicable to reproductions. If a person makes a work available for  
downloading without authorization, that person infringes the copyright owner’s right  
to authorize reproductions. That is so regardless of whether the works are ultimately  
downloaded.  
[108]  
Together, the performance, reproduction, and authorization rights in s. 3(1)  
of the Copyright Act give effect to Canada’s obligations under art. 8 and they do so in  
a technologically neutral manner. If a work is streamed or made available for  
on˗demand streaming, the author’s performance right is engaged. If a work is  
downloaded, the author’s reproduction right is engaged. If a work is made available for  
downloading, the author’s right to authorize reproductions is engaged. There are no  
gaps in protection.  
[109]  
I would add that there is nothing novel about relying on a combination of  
rights to give effect to the obligations under art. 8. As noted above, the United States  
also relies on a combination of rights to satisfy art. 8’s requirements. As the United  
States Copyright Office explained, when examining the United States’ compliance with  
the WIPO Copyright Treaty,  
[t]he Office maintains its longstanding view that the act of making a  
copyrighted work available in such a way that members of the public may  
access it at a time and place of their choosing will implicate one or more  
of the exclusive rights under Section 106 of the U.S. Copyright Act. In  
general, where a party offers members of the public access to a work in the  
form of a download, the offer implicates the right of distribution. Where  
access is offered in the form of a stream or the showing of an image, the  
relevant right is that of public performance or public display. In each case,  
the applicable statutory provision satisfies the essential elements of the  
treaty obligation, including specifically the requirements that the exclusive  
right cover (1) offers to communicate a work, not just completed  
transmissions, and (2) individualized communications that can be received  
in separate places and at different times. [p. 74]  
D. Summary  
[110]  
To recap, I do not agree with the Board’s interpretation of s. 2.4(1.1). The  
reading most consistent with the text, structure, purpose and context of s. 2.4(1.1) is as  
follows: s. 2.4(1.1) clarifies that (1) s. 3(1)(f) applies to on-demand streams, and (2) a  
work is performed as soon as it is made available for on-demand streaming.  
[111]  
This interpretation of s. 2.4(1.1) gives effect to Canada’s obligations under  
art. 8. There is no way to download a work, stream a work, or make a work available  
for on-demand streaming or downloading that does not engage one of the author’s  
exclusive rights in s. 3(1).  
[112]  
This interpretation is also technologically neutral. Similar to offline  
distributions, downloading or streaming works will continue to engage only one  
copyright interest and require paying one royalty — a reproduction royalty for  
downloads or a performance royalty for streams. If a work is downloaded or made  
available for downloading, s. 3(1)(f) is not engaged. Is a work if made available for  
streaming and later streamed, s. 3(1)(f) is only engaged once.  
[113]  
Before concluding, I would note that the value of these rights is not in issue  
in this appeal. Setting the appropriate royalties to compensate authors when these rights  
are engaged is a matter for the Board to decide. Similarly, the considerations that a  
court might have regard to in assessing monetary remedies for infringement is a matter  
to be decided if and when such a case arises.  
VII. Conclusion  
[114]  
For the foregoing reasons, I would dismiss the appeal. Apple Inc. and  
Apple Canada Inc. are awarded their costs in this Court; the remaining respondents are  
awarded their costs in this Court and in the Federal Court of Appeal.  
The reasons of Karakatsanis and Martin JJ. were delivered by  
KARAKATSANIS J. —  
[115]  
In Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC  
65, [2019] 4 S.C.R. 653, this Court sought to bring coherence and predictability to the  
law governing judicial review. The majority “set out a holistic revision of the  
framework” anchored in a strong presumption of reasonableness, which could only be  
rebutted in five situations (para. 143).  
[116]  
This case does not fall within any of those categories. Nevertheless, my  
colleague concludes the standard of review is correctness. Even though the majority in  
Vavilov did not choose to recognize concurrent first instance jurisdiction between  
courts and administrative bodies as an exception to the presumption of reasonableness,  
my colleague does so, creating a sixth category of correctness review. I cannot agree.  
[117]  
By creating a new correctness category only three years after a majority of  
the Court set out a comprehensive framework, my colleague’s conclusion undermines  
Vavilov’s promise of certainty and predictability. His approach shows no fidelity to the  
majority’s reasons in Vavilov, which were “the product of careful consideration  
undertaken following extensive submissions and based on a thorough review of the  
relevant jurisprudence” (para. 69). This thorough review obviously considered  
correctness cases of recent vintage, such as Rogers Communications Inc. v. Society of  
Composers, Authors and Music Publishers of Canada, 2012 SCC 35, [2012] 2 S.C.R.  
283. Indeed, the majority cited Rogers at para. 48.  
[118]  
In my view, a faithful application of the Vavilov framework can only result  
in one conclusion — the standard of review in this case is reasonableness. Even so, the  
Copyright Board of Canada’s decision cannot be upheld. The reasons are unreasonable  
in light of the statutory context and this Court’s precedents.  
[119]  
My reasons proceed in three parts. First, I address the applicable standard  
of review in light of Vavilov. Second, I discuss the appropriate approach to a  
reasonableness review. Finally, I turn to the Board’s reasons in this case (2017  
152886).  
I.  
The Standard of Review is Reasonableness  
[120]  
In the decade following the Court’s decision in Dunsmuir v. New  
Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, the standard of review proved  
contentious. Vavilov promised to bring the parties’ focus back to the substantive merits  
of their case rather than the governing test (para. 69, quoting Alberta (Information and  
Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3  
S.C.R. 654, at para. 36, which quoted Dunsmuir, at para. 145, per Binnie J.,  
concurring).  
[121]  
In granting leave in Vavilov, the Court “viewed these appeals as an  
opportunity to consider the law applicable to the judicial review of administrative  
decisions as addressed in Dunsmuir and subsequent cases” (para. 6 (emphasis added)).  
The Court “appointed two amici curiae, invited the parties to devote a substantial  
portion of their submissions to the standard of review issue, and granted leave to 27  
interveners, comprising 4 attorneys general and numerous organizations representing  
the breadth of the Canadian administrative law landscape” (Vavilov, at para. 6).  
[122]  
In addition to hearing from a broad range of parties, the Court undertook  
an exhaustive review of its jurisprudence, including recent correctness cases: Society  
of Composers, Authors and Music Publishers of Canada v. Canadian Assn. of Internet  
Providers, 2004 SCC 45, [2004] 2 S.C.R. 427, at paras. 48-50; Rogers, at paras. 10-20;  
Canadian Broadcasting Corp. v. SODRAC 2003 Inc., 2015 SCC 57, [2015] 3 S.C.R.  
615 (CBC), at para. 35. The majority’s decision was “the product of careful  
consideration undertaken following extensive submissions and based on a thorough  
review of the relevant jurisprudence” (Vavilov, at para. 69 (emphasis added)).  
[123]  
With the assistance of submissions and our existing jurisprudence, the  
majority set out a new “holistic” framework. Vavilov was explicit about what it  
accomplished: a presumption of reasonableness in judicial review that could only be  
displaced in five situations. Those situations are: (i) where the legislature explicitly  
prescribes the applicable standard of review; (ii) where the legislature has provided a  
statutory appeal mechanism; (iii) constitutional questions; (iv) general questions of law  
of central importance to the legal system as a whole; and (v) questions related to the  
jurisdictional boundaries between two or more administrative bodies (Vavilov, at  
paras. 17 and 69). The Court made clear “that these reasons address all of the situations  
in which a reviewing court should derogate from the presumption of reasonableness  
review” (Vavilov, at para. 69 (emphasis added)).  
[124]  
Concurrent jurisdiction at first instance was not among these five  
exceptional categories. Although the Court did not “definitively foreclose the  
possibility that another category could be recognized”, noting that “it would be  
unrealistic to declare that we have contemplated every possible set of circumstances  
[that would] require a derogation from the presumption of reasonableness”, this was  
clearly not so with concurrent first instance jurisdiction between the Copyright Board  
and courts (para. 70). I repeat the obvious: The Court had its own recent precedent in  
Rogers before it — a decision that is cited in Vavilov. The establishment of new  
categories was explicitly reserved for possible circumstances the Court could not  
realistically foresee. It is “unrealistic” to suggest that the Court’s own precedent  
represents a “possible set of circumstances” that it could not “have contemplated”.  
[125]  
Instead, the Court chose not to make first instance concurrent jurisdiction  
an exception. In so doing, it overturned Rogers on the standard of review issue. This  
was not an oversight. Nor was it inadvertent. The majority acknowledged that the  
judgment “depart[ed] from the Court’s existing jurisprudence on standard of review in  
certain respects” (Vavilov, at para. 18).  
[126]  
Finally, even if Rogers had not been within the contemplation of the Court,  
it would not qualify as an additional exceptional correctness category: “any new basis  
for correctness review would be exceptional and would need to be consistent with the  
framework and the overarching principles set out in these reasons” (Vavilov, at  
para. 70).  
[127]  
I reject the suggestion that this is such a rare and exceptional circumstance.  
A new category of concurrent jurisdiction at first instance cannot be justified on the  
basis of the rule of law or legislative intent. These considerations did not justify the  
creation of this category in Vavilov. They do not justify creating this category now.  
[128]  
First, I agree with the majority in Vavilov that “the more robust form of  
reasonableness review . . ., which accounts for the value of consistency and the threat  
of arbitrariness, is capable, in tandem with internal administrative processes to promote  
consistency and with legislative oversight . . ., of guarding against threats to the rule of  
law” (para. 72 (citation omitted)). With courts also acting as first instance decision  
makers, a robust form of reasonableness is even more equipped to safeguard the rule  
of law. Specifically, a binding and material precedent will place a limit on what is  
reasonable in the circumstances (Vavilov, at paras. 111-12, per the majority, and  
para. 293, per Abella and Karakatsanis JJ., dissenting, but not on this point).  
[129]  
Administrative decision makers also play an important role in upholding  
and applying the rule of law. In any event, consistency in decision making and the rule  
of law cannot be absolute in nature regardless of the context (Domtar Inc. v. Quebec  
(Commission d’appel en matière de lésions professionnelles), [1993] 2 S.C.R. 756, at  
pp. 787-88).  
[130]  
In my view, recognizing a sixth category on the basis of the rule of law  
flouts stare decisis principles and therefore runs directly counter to the rule of law.  
Ultimately, a faithful application of the majority’s framework in Vavilov cannot  
credibly justify the creation of a sixth correctness category on this basis.  
[131]  
Second, the Copyright Act, R.S.C. 1985, c. C-42, gives no clear signal of  
legislative intent regarding the applicable standard of review. Vavilov states that the  
legislature can provide this signal in two ways: it can explicitly prescribe the standard,  
or it can provide a statutory appeal mechanism (para. 33). Concurrent jurisdiction  
between a tribunal and a court was before the Court in Vavilov but was not identified  
as an analogous signal of legislative intent requiring correctness review. Here, there is  
no legislated standard of review, statutory appeal mechanism, nor any other analogous  
provisions. Legislative choice “pulls in two directions” — the absence of these “clear  
signals” is telling (Vavilov, at paras. 39 and 49). It follows that a sixth category cannot  
be established on the basis of Parliament’s intent.  
[132]  
Consequently, neither legislative intent nor the rule of law can bring this  
case into the realm of the “rare and exceptional” — to conclude otherwise sweeps aside  
the Court’s recently established framework governing the standard of review. Rather,  
the creation of a sixth category is simply contrary to the majority reasons in Vavilov.  
This Court’s “guidance . . . should be treated as binding” when it “turns its full attention  
to an issue and deals with it definitively” (M. Rowe and L. Katz, “A Practical Guide to  
Stare Decisis” (2020), 41 Windsor Rev. Legal Soc. Issues 1, at p. 10).  
[133]  
Although my colleague relies on para. 70 to steer off the clear pathway set  
by Vavilov, it must be read in the context of the preceding paragraph. Paragraph 69  
speaks for itself:  
In these reasons, we have identified five situations in which a derogation  
from the presumption of reasonableness review is warranted either on the  
basis of legislative intent (i.e., legislated standards of review and statutory  
appeal mechanisms) or because correctness review is required by the rule  
of law (i.e., constitutional questions, general questions of law of central  
importance to the legal system as a whole, and questions regarding  
jurisdictional boundaries between administrative bodies). This framework  
is the product of careful consideration undertaken following extensive  
submissions and based on a thorough review of the relevant jurisprudence.  
We are of the view, at this time, that these reasons address all of the  
situations in which a reviewing court should derogate from the  
presumption of reasonableness review. As previously indicated, courts  
should no longer engage in a contextual inquiry to determine the standard  
of review or to rebut the presumption of reasonableness review. Letting go  
of this contextual approach will, we hope, “get the parties away from  
arguing about the tests and back to arguing about the substantive merits of  
their case”: Alberta Teachers, at para. 36, quoting Dunsmuir, at para. 145,  
per Binnie J., concurring.  
[134]  
For all these reasons, I conclude that the majority decision in Vavilov  
compels review of the Board’s decision under a reasonableness standard.  
[135]  
Given the majority’s departure from Vavilov, I would sound a note of  
caution. Questioning the continued authority of correctness cases that predate Vavilov  
undermines the Court’s framework and its goal of promoting consistency, coherence,  
and certainty in the law of judicial review. Regrettably, my colleague’s approach will  
not be without consequences. Not only will it open the door to endless litigation  
concerning possible exceptions to the reasonableness presumption, it will erode the  
presumption of reasonableness in all standard of review cases going forward. This  
result is precisely what Vavilov aimed to avoid.  
II. Reasonableness Review  
[136]  
Before turning to the Board’s reasons in this case, I address the approach  
to reasonableness review. First, three clarifying comments.  
[137]  
In Vavilov, the Court was clear: there is only one standard of  
reasonableness. The Court expressly rejected the idea that context could modify the  
standard or degree of scrutiny by the reviewing court. While context does not affect the  
standard of review, it is obviously important in determining whether the decision itself  
is reasonable (Vavilov, at para. 67; Canada (Citizenship and Immigration) v. Khosa,  
2009 SCC 12, [2009] 1 S.C.R. 339, at para. 59). To the extent that the reasons of the  
Federal Court of Appeal imply otherwise, they are incorrect (2020 FCA 100, [2021] 1  
F.C.R. 374).  
[138]  
Second, I would also note that, in conducting a reasonableness review, it is  
not helpful to review the factors set out by the court below in paras. 26-36 of their  
reasons. Vavilov was designed to provide a clear, coherent and comprehensive  
framework, so additional considerations are unnecessary and undermine the Court’s  
goal of bringing clarity to the standard of review.  
[139]  
Finally, it is misleading to characterize the Court’s recent jurisprudence as  
a return to textualism, as the Federal Court of Appeal did, at para. 42. As the Court  
confirmed in Vavilov, courts and administrative decision makers alike interpret a  
statutory provision “by applying the ‘modern principle’ of statutory interpretation, that  
is, that the words of a statute must be read ‘in their entire context and in their  
grammatical and ordinary sense harmoniously with the scheme of the Act, the object  
of the Act, and the intention of Parliament’” (Vavilov, at para. 117, citing Rizzo & Rizzo  
Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at para. 21, and Bell ExpressVu Limited  
Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 26, both quoting  
E. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87).  
[140]  
Context and consequences remain essential (see, e.g., Uber Technologies  
Inc. v. Heller, 2020 SCC 16). A purely textual reading is inconsistent with a broad and  
remedial approach to statutory interpretation. And, as Abella J. and I have noted  
elsewhere, “words matter, policy objectives matter, and consequences matter” (TELUS  
Communications Inc. v. Wellman, 2019 SCC 19, [2019] 2 S.C.R. 144, at para. 108).  
[141]  
With those clarifications in mind, the framework for reasonableness review  
can be plainly stated as follows.  
[142]  
A reasonable decision is “one that is based on an internally coherent and  
rational chain of analysis” that operates within the bounds set by the context (Vavilov,  
at para. 85; see also paras. 293 and 296, per Abella and Karakatsanis JJ., dissenting,  
but not on this point). The reviewing court asks “whether the decision bears the  
hallmarks of reasonableness — justification, transparency and intelligibility” (Vavilov,  
at para. 99). This approach requires the reviewing court to start with how the decision  
maker arrived at their interpretation and to determine whether that interpretation was  
defensible in light of the facts and the law (Vavilov, at para. 86, per the majority, and  
para. 205, per Abella and Karakatsanis JJ., both quoting Dunsmuir, at para. 47).  
[143]  
Statutory interpretation questions may be evaluated on a reasonableness  
standard (Vavilov, at para. 115). Where this standard applies, “the reviewing court does  
not undertake a de novo analysis of the question or ‘ask itself what the correct decision  
would have been’” (Vavilov, at para. 116, quoting Law Society of New Brunswick v.  
Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247, at para. 50). Rather, “the court must examine  
the administrative decision as a whole, including the reasons provided by the decision  
maker and the outcome that was reached” (Vavilov, at para. 116).  
[144]  
The court does so, as explained above, in reference to the modern principle  
of statutory interpretation. Although administrative decision makers need not engage  
in a formalistic interpretation, their task is to interpret the contested provision in a  
manner that is consistent with the text, context and purpose, applying their particular  
insight into the statutory scheme at issue (Vavilov, at paras. 120-21).  
[145]  
At all times, a reasonableness review proceeds from a posture of deference.  
It finds its starting point in judicial restraint and respects the distinct role of  
administrative decision makers (Vavilov, at para. 75). It follows that a decision must be  
afforded a fair and generous construction.  
[146]  
The party challenging the decision must satisfy the court “that any  
shortcomings or flaws relied on . . . are sufficiently central or significant to render the  
decision unreasonable” (Vavilov, at para. 100). In this case, that burden lies with the  
respondents.  
III. Applying the Standard of Review in This Case  
[147]  
I turn now to the application of the reasonableness standard in this case.  
[148]  
As I will explain, the Board’s decision is unreasonable because it  
disregards two significant considerations: (i) a recent precedent from the Court, and  
(ii) the guiding principles of the statutory scheme. Although administrative decision  
makers need not “explicitly address all possible shades of meaning”, the Board did not  
consider key elements that supported a contrary interpretation of the relevant statutory  
provision (Vavilov, at para. 122, quoting Construction Labour Relations v. Driver Iron  
Inc., 2012 SCC 65, [2012] 3 S.C.R. 405, at para. 3).  
[149]  
First, the Board’s decision is unreasonable because it interpreted s. 2.4(1.1)  
without meaningful consideration of the legal context, as required by Vavilov, at  
para. 112. Specifically, the Board determined, at para. 136, that Entertainment  
Software Association v. Society of Composers, Authors and Music Publishers of  
Canada, 2012 SCC 34, [2012] 2 S.C.R. 231 (ESA) — a relevant and binding precedent  
from this Court — was distinguishable and therefore not binding. As a result, the Board  
considered it irrelevant to an interpretation of s. 2.4(1.1).  
[150]  
In my view, it was unreasonable for the Board to disregard ESA — the  
leading domestic authority on s. 3(1)(f). It did so for three reasons. The Board first  
dismissed the applicability of ESA because it was decided without reference to the  
WIPO Copyright Treaty, Can. T.S. 2014 No. 20, or the WIPO Performances and  
Phonograms Treaty, Can. T.S. 2014 No. 21. Although I agree that the Treaties form  
part of the relevant legal context, this was not a cogent basis to disregard or distinguish  
ESA’s interpretation of the Copyright Act, especially because domestic law always  
prevails (National Corn Growers Assn. v. Canada (Import Tribunal), [1990] 2 S.C.R.  
1324, at pp. 1371-72).  
[151]  
The Board next pointed out that ESA was decided against a different  
legislative backdrop. Yet, three critical aspects of the legislation remained the same  
with the enactment of the Copyright Modernization Act, S.C. 2012, c. 20 (CMA): (i) the  
language of s. 3(1)(f), (ii) the Copyright Act’s fundamental distinction between  
performance and reproduction rights, and (iii) Parliament’s commitment to preserve  
technological neutrality. All these aspects were critical to the Court’s reasoning in ESA  
and have implications for the reasonable interpretations available to the Board. It was  
unreasonable for the Board to disregard the similarities in context.  
[152]  
Finally, the Board noted that the “previous interpretation of ‘communicate’  
in ESA focussed only on the transmission element of that right and is distinguishable”  
(para. 117). While ESA considered the definition of “communication” in a more narrow  
sense because it only focussed on part of the activity in question (i.e., downloads),  
summarily dispensing with its guidance was inappropriate. The act of making available  
is inextricably bound with any subsequent transmission — someone cannot stream or  
download a work without it first being made available. A consideration of this whole  
transaction is necessary because otherwise the Board could not assess the entirety of  
rights engaged. The result, as is evident, is an interpretation that would create two rights  
for a single activity, which fails to strike a proper balance between user and creator  
rights.  
[153]  
Had the Board meaningfully engaged with ESA, it would not have rendered  
a decision that captured downloads — a reproductive activity — within an act of  
communication, contrary to ESA, at para. 39, nor would it have effectively created two  
separate rights for a single activity, contrary to ESA, at para. 41. Without a cogent  
reason to distinguish ESA, the Board unreasonably neglected the Court’s interpretation  
of s. 3(1)(f) and reached a conclusion that is inconsistent with a material legal precedent  
of the Court.  
[154]  
The Board’s decision was also unreasonable in the context of the broader  
statutory scheme.  
[155]  
First, as the Court has recognized, the Act aims to strike a balance between  
the interests of user and creator, and the proper balance “lies not only in recognizing  
the creator’s rights but in giving due weight to their limited nature” (Théberge v.  
Galerie d’Art du Petit Champlain inc., 2002 SCC 34, [2002] 2 S.C.R. 336, at para. 31).  
With the benefit of duplicate royalties, the equilibrium now swings heavily in the  
creator’s favour, contrary to this Court’s instructions to maintain balance in CBC, at  
para. 63, and ESA, at paras. 9 and 11. The Board’s reasons fail to meaningfully address  
the duplicate royalties that would arise when a work is subsequently downloaded or  
streamed. This was unreasonable in light of the Court’s caution against this precise  
kind of layering of rights, or “double-dipping” of tariffs (ESA, at para. 11). This aspect  
of the Board’s decision was not reasonable.  
[156]  
Second, the Board’s reasons with respect to technological neutrality — a  
guiding interpretive principle for the Act — were unreasonable. At para. 128, the Board  
recognized that the CMA expressed Parliament’s goal to ensure the Act remains  
technologically neutral. It also acknowledged that the principle of technological  
neutrality applies unless there is evidence of Parliamentary intent to the contrary  
(para. 127). Yet, the interpretation advanced by the Board was not technologically  
neutral because, contrary to the importance placed on technological neutrality by this  
Court in ESA, at para. 2, and CBC, at para. 66, it opened the door to duplicate royalties  
simply because the transaction takes place online.  
[157]  
The Board’s sole basis for concluding that the principle of technological  
neutrality does not limit or restrict the meaning of s. 2.4(1.1) was confined to one  
sentence highlighting “the legislative history, the rationale for the WIPO Internet  
Treaties, and the legislative objective to fully implement those treaties using a  
‘coordinated approach’” (para. 129). The Board did not explain how this can displace  
Parliament’s express intention to enact the CMA in a technologically neutral way.  
Without displacing Parliament’s intent, the Board could not endorse an interpretation  
that applied differently to diverse forms of media. The Board’s decision in this respect  
was unreasonable.  
[158]  
In summary, the failure of the Board to consider the Court’s material and  
binding precedents or the animating themes of the Copyright Act was unreasonable.  
While a failure to consider “a pertinent aspect of [a provision’s] text, context or  
purpose” will not always be fatal under a reasonableness review, this is not a case where  
the omission is a minor aspect of the interpretive context (Vavilov, at para. 122). As a  
result, I do not accept the Board’s interpretation of s. 2.4(1.1).  
[159]  
Unless there is only one reasonable outcome, as a general rule, a court  
applying the reasonableness standard refrains from deciding the issue (Vavilov, at  
paras. 83 and 110). Accordingly, a reviewing court “does not ask what decision it  
would have made in place of that of the administrative decision maker, attempt to  
ascertain the ‘range’ of possible conclusions that would have been open to the decision  
maker, conduct a de novo analysis or seek to determine the ‘correct’ solution to the  
problem” (Vavilov, at para. 83).  
[160]  
If correctness was the applicable standard, then I would agree with my  
colleague’s conclusion that s. 2.4(1.1) could not be read as creating a new independent  
right that is triggered when works are made available for downloading or on-demand  
streaming, nor as creating a separate tariff. Nothing in the text, context, or purpose of  
s. 2.4(1.1) suggests otherwise, particularly when viewed in light of the legal landscape  
in which it operates.  
IV. Disposition  
[161]  
I would dismiss the appeal. Remitting the matter for a new interpretation  
is unnecessary because it would not change the result on the merits: the Board already  
found that it did not have sufficient evidence to determine what tariff should apply to  
the making available activity.  
Appeal dismissed.  
Solicitors for the appellant the Society of Composers, Authors and Music  
Publishers of Canada: Gowling WLG (Canada), Ottawa; Cassels Brock & Blackwell,  
Toronto.  
Solicitors for the appellant Music Canada: McCarthy Tétrault, Toronto.  
Solicitors for the respondents the Entertainment Software Association, the  
Entertainment Software Association of Canada, Bell Canada, Quebecor Media Inc.,  
Rogers Communications Inc. and Shaw Communications: Fasken Martineau  
DuMoulin, Ottawa.  
Solicitors for the respondents Apple Inc. and Apple Canada Inc.:  
Goodmans, Toronto.  
Solicitors for the respondent Pandora Media Inc.: McMillan, Ottawa.  
Solicitor for the intervener the Samuelson-Glushko Canadian Internet  
Policy and Public Interest Clinic: University of Ottawa, Ottawa.  
Solicitors for the interveners the Canadian Music Publishers Association  
carrying on business as “Music Publishers Canada” and the Professional Music  
Publishers Association: Cassels Brock & Blackwell, Toronto.  
Solicitors for the interveners the Canadian Association of Law Libraries  
and the Library Futures Institute: JFK Law Corporation, Vancouver; Cornell Law  
School, Ithaca, N.Y.  
Solicitors for the intervener Ariel Katz: Lenczner Slaght, Toronto.  


© 2022 IncJournal is not affiliated with or endorsed by the U.S. Securities and Exchange Commission